F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 25 2003
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 RUSSELL LEE SINGLETARY,

                Plaintiff - Appellant,                    No. 03-3123
           v.                                              (D. Kansas)
 UNITED STATES OF AMERICA,                        (D.C. No. 99-CV-2270-MLB)

                Defendant - Appellee.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, and ANDERSON and BRORBY , Senior Circuit
Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Russell Singletary, proceeding pro se, appeals an order of the

district court dismissing for lack of subject matter jurisdiction his claim against

the United States brought under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671 - 2680 (“FTCA”). We affirm.



                                  BACKGROUND

      Singletary was convicted of bank robbery and sentenced to a term of 180

months, to be served at the federal penitentiary in Leavenworth, Kansas. On

July 10, 1996, Deputy United States Marshals Vern Lukehart, Shawn Palmer and

Ernest Weatherington transported Singletary and six or seven other prisoners from

Iowa to Kansas, making an interim stop at the Corrections Corporation of

America (“CCA”), a private detention center near the Leavenworth penitentiary.

      Singletary arrived at the CCA in full body restraints, with his hands cuffed

together and secured to a chain around his waist, and his ankles shackled together.

Upon arrival at the CCA, Deputy Lukehart escorted Singletary to a small holding

cell containing a concrete bench approximately twenty inches high, seven feet

long, and three and one-half feet wide. A mattress lay on top of the bench. In

order to remove the restraints, Deputy Lukehart ordered Singletary to kneel on the

concrete bench. While attempting to do so, Singletary fell forward and, unable to

block his fall because his hands were restrained, he struck his head on the


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concrete wall, allegedly causing a variety of injuries. Singletary asserts that

Lukehart negligently failed to help him or prevent him from falling, and ignored

and/or minimized the severity of his injuries. Although he was seen on several

occasions by medical personnel, Singletary alleges his injuries were inadequately

treated, causing him permanent disabilities.

       On May 6, 1999, Singletary filed a complaint in the Leavenworth County

district court against Lukehart; Bill Graf, the former warden of the CCA; Carol

St. Clair, a registered nurse at the CCA; and Dr. Bowlin, a doctor at the CCA, all

in their individual capacities.   1
                                      On June 14, 1999, the United States removed that

action to federal court. On September 7, 1999, the United States filed its notice

of substitution, substituting the United States for Lukehart, the only federal

employee named in Singletary’s complaint. On September 29, the court entered

an order substituting the United States for Lukehart.

       Singletary then filed three motions to remand the case to state court, all of

which were denied. Graf, St. Clair and Bowlin (the “CCA defendants”) filed a

motion to dismiss on the ground that Singletary failed to file his complaint within


       1
        This is the second action Singletary has filed based upon his fall at the
CCA. On March 24, 1997, he filed an action in the United States District Court
for the District of Kansas alleging that he was provided inadequate medical care
in violation of his Eighth Amendment rights. The district court dismissed his
complaint because he failed to show that he had been treated with deliberate
indifference. We affirmed that decision. Singletary v. Lukehart, No. 98-3137,

(10th Cir. July 24, 1998).

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the applicable statute of limitations, and the United States filed a motion to

dismiss for failure to exhaust administrative remedies.   2
                                                              The district court denied

the United States’ motion to dismiss for failure to exhaust, but dismissed all

claims against the CCA defendants because the action had not been filed within

the two-year statute of limitations applicable to Singletary’s complaint alleging

injuries resulting from the negligent medical care provided by the CCA

defendants.

       Singletary’s claim against the United States was tried to the district court

on July 30, 2002. Following the trial, the court sua sponte raised the issue of the

applicability of the discretionary function exception to the FTCA, 28 U.S.C.

§ 2680(a). The court ordered the parties to simultaneously brief the issue and, on

March 28, 2003, the court entered a final judgment dismissing this action after

concluding that the discretionary function exception to the FTCA deprived the

court of subject matter jurisdiction. This pro se appeal followed.




       As a prerequisite to bringing an action under the FTCA, a claimant must
       2

present an administrative tort claim to the appropriate federal agency. 28 U.S.C.
§ 2675(a). That claim must be submitted to the appropriate agency within two
years of the incident giving rise to the claim. 28 U.S.C. § 2401(b).

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                                     DISCUSSION

      Singletary argues that a default judgment should be entered against the

CCA defendants and the United States “because of their failure to answer or

otherwise defend against this action in a timely manner.” Pl.’s Opening Br. at 5.    3



He further argues the court erred both in removing this action from state court to

federal court and in failing to remand the matter back to state court once it

determined it lacked subject matter jurisdiction over his FTCA claim. Finally,

Singletary argues the district court erred in finding that the discretionary function

exception to the FTCA’s waiver of sovereign immunity applies.




      3
        It is unclear what Singletary’s argument is with respect to the CCA
defendants. As indicated, the district court dismissed his complaint against them
because he failed to file his complaint within the applicable statute of limitations.
He makes no argument about that dismissal. Other than his vague single sentence
about the necessity for a default judgment to be entered against the CCA
defendants because of their “failure to answer or otherwise defend against this
action in a timely manner,” Pl.’s Opening Br. at 5, he fails to develop any
argument about the CCA defendants. We accordingly do not further address the
CCA defendants.
       Singletary similarly fails to develop any argument or cite any authority
relating to his assertion that the district court erred in failing to enter a default
judgment against the United States. Were we to address it, we would conclude
that the district court did not err when it concluded that the United States had
shown sufficient cause for its failure to file a timely responsive pleading, such
that the court correctly determined that no default judgment would be entered.

                                            -5-
I. Removal and Remand

       Singletary sued Lukehart for his negligent conduct performed in his official

capacity as a Deputy United States Marshal, an agent of the United States.

“‘When an action is one against named individual defendants, but the acts

complained of consist of actions taken by defendants in their official capacity as

agents of the United States, the action is in fact one against the United States.’”

Weaver v. United States , 

, 520 (10th Cir. 1996) (quoting         Atkinson v.

O’Neill , 

, 590 (10th Cir. 1989)). Under well established principles

of sovereign immunity, “the United States, as sovereign, ‘is immune from suit,

save as it consents to be sued . . . and the terms of its consent to be sued in any

court define that court’s jurisdiction to entertain the suit.’”     United States v.

Dalm , 

, 608 (1990) (quoting         United States v. Testan , 

,

399 (1976)) (further quotation omitted);        see also Boehme v. U.S. Postal Serv.   ,

, 1263 (10th Cir. 2003).

       In this case, Singletary sued Lukehart, a federal employee, for negligent

conduct occurring in the course of his official duties as a United States Marshal.

“The FTCA waives the federal government’s sovereign immunity for ‘the

negligent or wrongful act or omission’ of a federal employee ‘acting within the

scope of his office or employment.’”        Elder v. United States , 

, 1176

(10th Cir. 2002) (quoting 28 U.S.C. § 1346(b)(1)). An action under the FTCA is


                                               -6-
the exclusive remedy for someone claiming personal injuries arising out of the

negligent conduct of a federal employee, 28 U.S.C. § 2679(b)(1), and the district

courts of the United States have exclusive jurisdiction over such actions, 28

U.S.C. § 1346(b)(1). Because the United States was properly substituted as the

defendant in this case, instead of Lukehart, and because by statute the federal

district courts have exclusive jurisdiction over FTCA causes of action,

Singletary’s claim was properly removed from state to federal court.

      Singletary next argues that the court erred in denying his three motions to

remand the case back to the state court, particularly once it determined it lacked

subject matter jurisdiction. He relies upon 28 U.S.C. § 1447(c), which states,

“[i]f at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.” This argument is

misplaced. As we have indicated, pursuant to the FTCA, the federal district court

had exclusive jurisdiction over Singletary’s claim. The United States could not

be subjected to suit in the Kansas state courts. We decline to waste further

judicial resources by requiring the district court to remand Singletary’s case to the

Kansas state court, which would inevitably dismiss the matter for lack of

jurisdiction.




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II. Discretionary Function Exception to Waiver of Immunity

       The FTCA provides for exceptions to its waiver of immunity, including an

exception for claims “based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty” by a federal agency or a

government employee. 28 U.S.C. § 2680(a). “Because the exception applies

‘whether or not the discretion involved [was] abused,’ 28 U.S.C. § 2680(a), it is

irrelevant whether the government employees were negligent.”            Elder , 312 F.3d at

1176; see Aragon v. United States , 

, 822 (10th Cir. 1998).

       “The discretionary function exception ‘poses a jurisdictional prerequisite to

suit, which the plaintiff must ultimately meet as part of his overall burden to

establish subject matter jurisdiction.’”    

(quoting Miller v. United States ,

, 662 (10th Cir. 1983)) (further quotation omitted).

       We employ the two-part test of      Berkovitz v. United States   , 

,

536 (1988) to determine whether the discretionary function exception applies to

particular conduct:

       The first step of the Berkovitz test requires this court to determine
       whether the challenged conduct “involves an element of judgment or
       choice,” in which case it is discretionary and falls within the
       language of the exception, or whether it involves “a federal statute,
       regulation, or policy [that] specifically prescribes a course of action
       for an employee to follow,” in which case the exception does not
       apply.

       If the conduct involves discretionary judgment under the first step of
       Berkovitz , then we must apply the second step, which requires this

                                             -8-
       court to “determine whether that judgment is the kind that the
       discretionary function exception was designed to shield.” The
       exception protects only those discretionary actions or decisions
       which are “based in considerations of public policy.” The purpose 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.”

Elder , 312 F.3d at 1176 (citations omitted) (quoting        Kiehn v. United States , 

, 1102-03 (10th Cir. 1993) (quoting          Berkovitz , 486 U.S. at 536-37)).

“Discretionary conduct is not confined to the policy or planning level.”          United

States v. Gaubert , 

, 325 (1991). Indeed, “it is the nature of the

conduct, rather than the status of the actor, that governs whether the discretionary

function exception applies in a given case.”         United States v. Varig Airlines   , 

, 813 (1984).

       The district court found that the discretionary function exception to FTCA

claims rendered it without subject matter jurisdiction over this case. After

carefully reviewing that determination de novo,         Duke v. Dep’t of Agric. , 

, 1409 (10th Cir. 1997), we affirm the district court’s decision, for

substantially the same reasons set forth in its thorough and well-reasoned

decision.




                                               -9-
                          CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




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