MARION MONTEZ, Administratrix of the Estate of Tracy Hearlson v. United States of America

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0061P (6th Cir.)
File Name: 04a0061p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARION MONTEZ,
Administratrix of the Estate of
Tracy Hearlson,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
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No. 02-6303
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 99-00348—Joseph M. Hood, District Judge.
Argued: February 5, 2004
Decided and Filed: February 26, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: T. Bruce Simpson, Jr., ANGGELIS &
GORDON, Lexington, Kentucky, for Appellant. Thomas Lee
Gentry, ASSISTANT UNITED STATES ATTORNEY,
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Lexington, Kentucky, for Appellee. ON BRIEF: T. Bruce
Simpson, Jr., ANGGELIS & GORDON, Lexington,
Kentucky, for Appellant. Thomas Lee Gentry, Mason Moore
Kessinger, ASSISTANT UNITED STATES ATTORNEYS,
Lexington, Kentucky, for Appellee.
GILMAN, J., delivered the opinion of the court, in which
NELSON, J., joined. ROGERS, J. (p. 13), delivered a
separate concurring opinion.
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OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. A corrections
officer at the Federal Medical Center prison in Lexington,
Kentucky (FMC Lexington), found inmate Tracy Hearlson
dead in a housing unit of the prison during the early morning
hours of September 14, 1998. Hearlson had been beaten to
death with a fire extinguisher. No alarm sounded, and prison
officials were unaware of the assault until the corrections
officer discovered Hearlson’s body. Two of Hearlson’s
fellow inmates were subsequently convicted of his murder.
Marion Montez, who is both Hearlson’s mother and the
administratrix of his estate, brought suit against the United
States pursuant to the Federal Tort Claims Act (FTCA). Her
complaint alleged that the government was responsible for
Hearlson’s death because prison officials had negligently
failed to adequately protect him. The district court granted
the government’s motion to dismiss on the ground that the
prison officials’ decisions regarding Hearlson’s safety fell
within the discretionary function exception to the FTCA. For
the reasons set forth below, we AFFIRM the judgment of the
district court.

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No. 02-6303 Montez v. United States 3
I. BACKGROUND
Montez’s complaint alleges in pertinent part that
(1) Hearlson was an inmate at FMC Lexington who was
killed on or about September 14, 1999;
(2) The prison warden, other officials, and employees of
FMC Lexington were acting within the scope of their
employment at all relevant times;
(3) Hearlson’s murder was the “direct and proximate result
of the negligence” of these persons;
(4) Because Hearlson was “in protective lock-up prior to
the attack, employees and officials of the Defendant knew or
should have known that Tracy Hearlson was in imminent
danger of likely injury of substantial certainty and
consciously and knowingly failed to afford him reasonable
protection.”
(5) Prison officials placed Hearlson in a facility that they
“knew or reasonably should have known was so inadequate
that Tracy Hearlson could not be adequately protected from
the risk of assaults by fellow prisoners.”
(6) The officials “were required to use ordinary care in
determining whether a federal prisoner should be kept in a
particular facility and in determining where within that
particular facility the prisoner should be kept, and the
Governmental functions performed in these areas are not
‘discretionary functions’ with[] respect to which the United
States is immune from Tort Liability.”
Hearlson was beaten to death with a fire extinguisher in an
unsupervised area of FMC Lexington where inmates watch
television. No prison official was aware of the assault. But
the prison was aware of Hearlson’s prior altercations with
other inmates, and had previously put Hearlson in protective
lock-up. No official, however, had knowledge of any
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specific, imminent threat to Hearlson. In fact, Hearlson had
concurred in the decision by prison officials to release him
back into Commonwealth South, a housing unit at FMC
Lexington designed for inmates with mental health problems
or other special needs, approximately one month before the
fatal assault.
After Montez filed the complaint, the United States filed a
motion to dismiss or, in the alternative, for summary
judgment. The district court granted the motion, reasoning
that “the decision as to what level of protection within the
institution to be afforded Hearlson was a discretionary act by
Bureau of Prisons officials not subject to the FTCA.” This
timely appeal followed.
II. ANALYSIS
The only issue in this case is a purely legal one: Did the
district court properly grant the motion to dismiss on the basis
that the decisions of prison officials regarding Tracy
Hearlson’s safety fall within the discretionary function
exception to the FTCA, thereby depriving the district court of
subject matter jurisdiction? “This court reviews de novo a
district court's grant of a motion to dismiss on the basis of
subject-matter jurisdiction.” Pieper v. Am. Arbitration Ass’n,
Inc., 336 F.3d 458, 460 (6th Cir. 2003).
Analysis of this issue starts with the fundamental principle
that the United States government may not be sued without its
consent. United States v. Orleans, 425 U.S. 807, 814 (1976)
(observing that “the United States can be sued only to the
extent that it has waived its immunity”). Pursuant to the
FTCA, the United States has consented, subject to certain
exceptions, to suit for damages for personal injuries caused by
the negligence of government employees acting within the
course and scope of their employment. See 28 U.S.C.
§§ 1346(b), 2671-2680.

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No. 02-6303 Montez v. United States 5
A significant limitation on the scope of the FTCA’s waiver
of sovereign immunity is the discretionary function exception,
28 U.S.C. § 2680(a), which provides that the United States
has not consented to suit where the claim is “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.” Because the United States
has not waived its sovereign immunity with respect to
discretionary functions, courts lack subject matter jurisdiction
over acts falling within the discretionary function exception.
Rosebush v. United States, 119 F.3d 438, 440 (6th Cir. 1997).
The United States Supreme Court has formulated a two-part
test to determine whether a governmental act falls within the
exception. First, a court must ask whether the act involves
“an element of judgment or choice.” United States v.
Gaubert, 499 U.S. 315, 322 (1991) (quotation marks omitted)
(holding that federal regulators’ supervision of a savings and
loan association’s day-to-day operations was within the
discretionary function exception). If the answer to that
question is “yes,” then the court must ask “whether that
judgment is of the kind that the discretionary function
exception was designed to shield.” Id. at 322-23 (quotation
marks omitted). Each of these elements is discussed in turn
below.
A. Did the prison officials’ decisions regarding
Hearlson’s safety involve an element of
judgment or choice?
The Supreme Court has stated that “the discretionary
function exception will not apply when a federal statute,
regulation, or policy specifically prescribes a course of action
for an employee to follow.” Berkovitz v. United States, 486
U.S. 531, 536 (1988) (holding that the discretionary function
exception did not apply where the complaint alleged that the
FDA failed to follow a prescribed course of conduct when
approving a polio vaccine). In the present case, Montez
6 Montez v. United States No. 02-6303
contends that both a statute (18 U.S.C. § 4042(a)) and a
federal regulation (28 C.F.R. § 541.10) mandated a course of
conduct for prison officials to follow in making decisions
regarding Hearlson’s safety.
The statute provides in pertinent part as follows:
The Bureau of Prisons, under the direction of the
Attorney General, shall—
(1) have charge of the management and
regulation of all Federal penal and correctional
institutions;
(2) provide suitable quarters and provide for the
safekeeping, care, and subsistence of all persons
charged with or convicted of offenses against
the United States, or held as witnesses or
otherwise;
(3) provide for the protection, instruction, and
discipline of all persons charged with or
convicted of offenses against the United States.
18 U.S.C. § 4042(a) (emphasis added).
The statute imposes a mandatory duty upon the Bureau of
Prisons (BOP) through the use of the word “shall.” Calderon
v. United States, 123 F.3d 947, 950 (7th Cir. 1997) (holding
that § 4042(a) “sets forth a mandatory duty of care”). But the
duty imposed by § 4042(a) is of a general nature, broadly
requiring that the BOP “provide for the safekeeping” and
“provide for the protection” of federal inmates. BOP officials
are given no guidance, and thus have discretion, in deciding
how to accomplish these objectives.
The two other circuits that have previously considered this
issue have both decided that § 4042(a) does not specifically
prescribe a course of action for prison officials to follow. See
Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir. 1998)
(“[E]ven if § 4042 imposes on the BOP a general duty of care
to safeguard prisoners, the BOP retains sufficient discretion

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No. 02-6303 Montez v. United States 7
in the means it may use to fulfill that duty to trigger the
discretionary function exception.”); Calderon, 123 F.3d at
950 (“While it is true that this statute sets forth a mandatory
duty of care, it does not, however, direct the manner by which
the BOP must fulfill this duty. The statute sets forth no
particular conduct the BOP personnel should engage in or
avoid while attempting to fulfill their duty to protect
inmates.”). We believe that Cohen and Calderon are
persuasive on this point, and we therefore adopt their
conclusion.
But Montez also contends that BOP officials lack discretion
because of federal regulation 28 C.F.R. § 541.10, which
provides in pertinent part as follows:
(b) The following general principles shall apply in every
disciplinary action taken:
. . .
(2) Staff shall take disciplinary action at such times and
to the degree necessary to regulate an inmate's behavior
within Bureau rules and institution guidelines and to
promote a safe and orderly institution environment.
(Emphasis added.)
This regulation, much like 18 U.S.C. § 4042(a), sets forth
the general objectives of “regulat[ing] inmate behavior” and
“promot[ing] a safe and orderly institution environment,” but
does not mandate any specific course of action on the part of
BOP officials. Moreover, the phrases “at such times” and “to
the degree necessary” clearly allow prison officials discretion
to decide when disciplinary action is necessary.
In Calderon, the Seventh Circuit held that § 541.10 creates
no mandatory, nondiscretionary duty on the part of BOP
officials. 123 F.3d at 949. Calderon’s conclusion is
consistent with the language of the regulation, and we
likewise conclude that § 541.10 does not prescribe a specific
course of action that BOP officials must follow.
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In addition to the regulation cited by Montez, the United
States cites two additional regulations that govern the actions
of prison officials. One states that an inmate “may” be
removed from the general population for safety reasons.
28 C.F.R. § 541.22(a). Another provides that BOP staff “may
consider . . . as protection cases” inmates who are in danger.
28 C.F.R. § 541.23(a). The use of the word “may” in these
regulations, rather than “shall,” demonstrates that their
implementation is left to the discretion of BOP officials. See
Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 796 (8th
Cir. 1998) (holding that “the use of the term ‘may’ in the
regulations imports discretion”); see also Dorris v. Absher,
179 F.3d 420, 429 (6th Cir. 1999) (“The use of the term
‘may’ in a statute is generally construed as permissive rather
than as mandatory.”). Because these regulations contain no
mandatory language, we agree with Dykstra’s conclusion that
they do not impose a mandatory, nondiscretionary duty upon
BOP officials.
In sum, the relevant statute and regulations allowed BOP
officials to exercise judgment when making decisions
regarding Hearlson’s safety. Under the Supreme Court’s two-
factor approach, we must next consider “whether that
judgment is of the kind that the discretionary function
exception was designed to shield.” Gaubert, 499 U.S. at 322-
23 (quotation marks omitted).
B. Were the prison officials’ decisions regarding
Hearlson’s safety of the kind that the
discretionary function exception was meant to
shield?
Where the relevant governmental policy allows discretion,
the Supreme Court has explicitly stated what a plaintiff must
do to survive a motion to dismiss:
When established governmental policy, as expressed or
implied by statute, regulation, or agency guidelines,
allows a Government agent to exercise discretion, it must

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No. 02-6303 Montez v. United States 9
be presumed that the agent’s acts are grounded in policy
when exercising that discretion. For a complaint to
survive a motion to dismiss, it must allege facts which
would support a finding that the challenged actions are
not the kind of conduct that can be said to be grounded in
the policy of the regulatory regime. The focus of the
inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and on
whether they are susceptible to policy analysis.
Id. at 324-25. In the present case, therefore, we must decide
whether Montez’s complaint alleges facts sufficient to rebut
the presumption that the decisions by the prison officials
regarding Hearlson’s safety were “of the kind that the
discretionary function exception was designed to shield.”
Gaubert, 499 U.S. at 322-23 (quotation marks omitted) (the
Gaubert presumption).
Two other circuits have acknowledged the Gaubert
presumption in affirming the grant of motions to dismiss in
cases brought by injured prisoners. In Calderon, the Seventh
Circuit affirmed the grant of a motion to dismiss because the
plaintiff inmate had failed to allege in his complaint facts that
“would support a finding that the BOP’s [decision] not to take
disciplinary action against [the inmate who later attacked the
plaintiff] was based on grounds other than considerations of
public policy.” 123 F.3d at 950. Similarly, the Eighth Circuit
in Dykstra held that the discretionary function exception
barred a suit against the BOP by an inmate who was sexually
assaulted by another inmate. Dykstra claimed that certain
prison officials were negligent in not informing him that his
youthful appearance placed him at a higher risk of sexual
assault and for not taking action after Dykstra informed a
guard that another inmate had been staring at him. 140 F.3d
at 795. But Dykstra’s complaint was found deficient because
it failed to allege facts establishing that prison officials’
decisions regarding these issues were not based on policy
considerations. Id. at 796. The Eighth Circuit therefore
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affirmed the district court’s decision to grant the BOP’s
motion to dismiss.
As a general principle, a complaint that alleges the
existence of a specific and immediate threat against an inmate
is more likely to survive a motion to dismiss than a complaint
that either alleges a nonspecific threat or provides only
conclusory statements regarding the existence of a threat.
This follows from the fact that decisions by prison officials to
ignore specific and immediate threats against inmates are less
likely to be the type of decision that can be said to be
grounded in the underlying policy of the BOP, which requires
prison officials to provide for the safekeeping and protection
of inmates. See 18 U.S.C. § 4042(a). In light of this general
principle, we regard Dykstra as a close case because the
prison officials apparently knew that Dykstra was at a higher
risk of sexual assault and that the inmate who eventually
attacked Dykstra had been staring at him. 140 F.3d at 795.
We have been unable to find any post-Gaubert case that
illustrates a situation where an injured prisoner’s complaint is
unquestionably adequate to survive a motion to dismiss, but
one useful factual situation comes from the Supreme Court’s
decision in United States v. Muniz, 374 U.S. 150, 152 (1963),
where a prison guard stood by while an inmate was chased
and severely beaten by 12 other inmates. Although the Muniz
Court did not decide whether the discretionary function
exception applied, a complaint alleging the facts set forth in
Muniz would be adequate, in our opinion, to survive a motion
to dismiss because a guard’s conscious decision not to protect
an inmate from a specific and immediate attack cannot “be
said to be grounded in the policy of the regulatory regime.”
Gaubert, 499 U.S. at 325.
In the present case, only three allegations in the complaint
directly focus on the basis for prison officials’ decisions
regarding Hearlson’s safety. The complaint first alleges that
because Hearlson was “in protective lock-up prior to the
attack, employees and officials of the Defendant knew or

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No. 02-6303 Montez v. United States 11
should have known that Tracy Hearlson was in imminent
danger of likely injury of substantial certainty and
consciously and knowingly failed to afford him reasonable
protection.” But the sentence provides insufficient support
for its conclusory allegations. The sole fact Hearlson was “in
protective lock-up prior to the attack” does not demonstrate
the existence of a specific and immediate threat against
Hearlson that was still present after he was released from
protective lock-up a month earlier. That Hearlson had
previously been in protective lock-up is simply insufficient to
rebut the presumption that the prison officials’ decisions
regarding Hearlson’s safety at the time of his death were of
the type that can be said to be grounded in BOP policy.
The complaint next alleges that the prison officials placed
Hearlson in a facility that they “knew or reasonably should
have known was so inadequate that Tracy Hearlson could not
be adequately protected from the risk of assaults by fellow
prisoners.” This allegation, however, simply alleges that the
BOP officials were negligent in making a decision—to place
Hearlson in the Commonwealth South housing area—without
addressing the nature of that decision, and therefore does not
satisfy Gaubert’s requirement that a complaint “must allege
facts which would support a finding that the challenged
actions are not the kind of conduct that can be said to be
grounded in the policy of the regulatory regime.” Gaubert,
499 U.S. at 324-25.
Finally, the complaint alleges that the prison officials “were
required to use ordinary care in determining whether a federal
prisoner should be kept in a particular facility and in
determining where within that particular facility the prisoner
should be kept, and the Governmental functions performed in
these areas are not ‘discretionary functions’ with[] respect to
which the United States is immune from Tort Liability.” This
is nothing more than a bare assertion that the discretionary
function exception does not apply, and it clearly does not
satisfy Gaubert’s requirement of a factual assertion sufficient
to rebut the presumption that the prison officials’ decisions
12 Montez v. United States No. 02-6303
were of the type that can be said to be grounded in BOP
policy.
In conclusion, the relevant statute and regulations do not
prescribe a mandatory course of conduct for prison officials
to follow when making decisions regarding inmates’ safety.
Montez’s complaint, moreover, fails to rebut the Gaubert
presumption that the decisions by prison officials regarding
his safety were based upon BOP policy. We therefore
conclude that the discretionary function exception shields the
United States from liability in this case, and that the district
court properly granted the government’s motion to dismiss for
lack of subject matter jurisdiction.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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No. 02-6303 Montez v. United States 13
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CONCURRENCE
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ROGERS, Circuit Judge, concurring. I concur in the
majority’s judgment and almost totally in its reasoning. My
one reservation concerns the first complaint allegation
discussed by the majority: that because of Hearlson's previous
stint in protective custody, BOP officials knew or should have
known that Hearlson was in danger and failed to provide him
reasonable protection. With respect, the issue for
discretionary function exception purposes is not whether there
is sufficient support for the allegation, nor is the issue the
specificity or immediacy of the threat. Instead, the relevant
question is whether the ongoing determination of where
Hearlson would be placed was the type of agency decision-
making that takes broad agency policies into account. In
short, the relevant inquiry is the nature of the decision-making
process, not the nature of the threat. I agree, however, that
there is nothing about this allegation that rebuts the
presumption that the prison officials’ decisions regarding
Hearlson’s safety were the type of decision that is grounded
in policy.

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