1 F.4th 924
11th Cir.2021Background
- Inmate Mackie Shivers (64) was stabbed in the eye by his cellmate Marvin Dodson (26), resulting in permanent blindness in one eye; Shivers alleged prison officials knew Dodson was violent and negligently housed him together.
- Shivers sued the United States under the Federal Tort Claims Act (FTCA) and five individual prison employees under Bivens, alleging negligence and Eighth Amendment violations.
- The district court dismissed the FTCA claim for lack of jurisdiction under the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a), and dismissed the Bivens claim without prejudice for failure to exhaust administrative remedies (BP-11 not recorded in BOP SENTRY).
- Shivers asserted he mailed a signed BP-11 with the help of another inmate; the BOP’s Central Office records showed no BP-11 received and the copy Shivers submitted was unsigned.
- The Eleventh Circuit affirmed both dismissals: (1) holding inmate-classification/housing decisions fall within § 2680(a) and that an allegation of an unconstitutional abuse of that discretion does not defeat the exception; and (2) holding Shivers failed to establish he exhausted the BP-11 appellate step.
- Judge Wilson concurred in the exhaustion holding but dissented on the FTCA issue, arguing a constitutional violation places the conduct outside the discretionary-function exception and would remand to test the plausibility of Shivers’s Eighth Amendment claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA discretionary-function exception bars Shivers’s FTCA negligence claim when the same conduct is alleged to violate the Constitution | Shivers: a government employee has no discretion to violate the Constitution, so alleged unconstitutional conduct removes § 2680(a) protection and the FTCA claim may proceed | Government: inmate-classification and housing-placement are discretionary policy decisions protected by § 2680(a); plaintiff points to no specific statute/regulation that removed discretion | Held: Affirmed dismissal — housing/classification decisions are discretionary under Gaubert/Cohen and § 2680(a) bars FTCA liability even if plaintiff alleges the discretionary act was unconstitutional |
| Whether Shivers exhausted administrative remedies for his Bivens claim (BP-11 to Central Office) | Shivers: he mailed a signed BP-11 via institutional mail with help from another inmate and pursued the process through BP-10 | Government: BOP SENTRY Central Office records show no BP-11 received; the copy attached by Shivers was unsigned and therefore insufficient | Held: Affirmed dismissal without prejudice — district court’s factual finding that no BP-11 was filed is supported; exhaustion not established |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (two-prong test for discretionary-function exception)
- Berkovitz v. United States, 486 U.S. 531 (discretionary-function exception inapplicable where federal law specifically prescribes conduct)
- Cohen v. United States, 151 F.3d 1338 (11th Cir.) (prisoner classification and housing-placement decisions are discretionary)
- Millbrook v. United States, 569 U.S. 50 (plain-text approach to FTCA exceptions)
- F.D.I.C. v. Meyer, 510 U.S. 471 (FTCA addresses state-law torts, not constitutional claims)
- Linder v. United States, 937 F.3d 1087 (7th Cir.) (holding constitutional-violation allegation does not automatically defeat § 2680(a))
- Kiiskila v. United States, 466 F.2d 626 (7th Cir.) (constitutional infirmity of action did not remove discretionary-function protection for FTCA claim)
- Denson v. United States, 574 F.3d 1318 (11th Cir.) (discussed dicta on discretion to violate Constitution; not a controlling holding)