Eleventh Circuit Upholds Immunity of Federal Prison Guards Under FTCA, Even for Blatant Unconstitutional Acts
by Dale Chappell
In a move that surprised few, the U.S. Court of Appeals for the Eleventh Circuit went against the grain of almost every other court and held on June 9, 2021, that the discretionary function exception, which grants immunity to federal employees when they injure someone while exercising their discretion on the job, applies even when the employee violates someone’s constitutional rights, no matter how blatant.
It’s a case that’s disturbing but shows the disregard for human life that prison officials have for prisoners. About six years ago, Mackie Shivers was sleeping when his “cellie,” Marvin Dodson, attacked him with a pair of scissors, stabbing him in the eye. Shivers wound up losing that eye. But it could have been prevented, he said, because he repeatedly told staff about his cellie’s violent actions and how he feared for his safety. Both men were in the U.S. Penitentiary at Coleman in Florida, with Shivers serving a mandatory life sentence after losing a drug case at trial. Dodson was also serving a drug sentence and had been deemed a safety risk because of his numerous violent acts while in prison. Somehow the two men lived together for eight months until the stabbing.
Shivers sued the BOP under the civil rights provision in Bivens v. Six Unknown Named Fed Agents, 403 U.S. 388 (1971), and under the Federal Tort Claims Act (FTCA). The Bivens case provided a remedy for a constitutional violation by a federal employee, and the FTCA provided a remedy for the injury sustained due to a federal employee’s violation of state law. But, as is common with lawsuits against federal employees (especially law enforcement, including prison guards), there are many immunities. His Bivens claim was dismissed because he failed to properly exhaust his administrative remedies. While he provided a copy of the final appeal (BP-11), the government said it never received it and the court believed them. Shivers could not, however, produce proof that he mailed it or that anyone received it, either by certified or return-receipt mail.
Shivers then ran into an obstacle called “discretionary function exception” (DFE), which grants immunity to any federal employee who injures someone while acting within their discretion on the job. Shivers acknowledged this well-known exception, but argued that it doesn’t apply if the federal employee violates the Constitution. In effect, he argued for a constitutional-violation exception to the DFE exception. It was a valid argument, though, with Judge Bev Martin granting Shivers’ in forma pauperis status on the issue for appeal. She noted that a “vast majority” of other courts have held exactly what Shivers was arguing—eight other courts to be exact.
But on appeal, a split panel of the Eleventh Circuit diverged from the course of those other courts. Two of the judges said that there is no such thing as an unconstitutional-act exception to the DFE. The court noted that the FTCA provides a remedy from violation of state law by federal employees, and has nothing to do with constitutional violations by them. It further noted that Shivers’ Bivens claim was the proper method to argue the constitutional violations by prison staff, but that he failed to properly pursue that avenue because of his failure to exhaust his remedies.
“The inquiry is not about how poorly, abusively, or unconstitutionally the employee exercised his or her discretion but whether the underlying function or duty itself was a discretionary one,” the court said. In other words, no matter how bad a prison staffer’s constitutional violation may be toward a prisoner, even if grossly wrong, there is no remedy for it under the FTCA. There is no way to “circumvent” the limits on constitutional tort actions under Bivens, the court said.
The lesson here is that a prisoner does in fact have a remedy for a constitutional violation, such as prison staff’s blatant disregard for a prisoner’s safety. But it is not the FTCA, at least not in the Eleventh Circuit. That type of claim must be brought by a Bivens action after properly exhausting all administrative remedies. See: Shivers v. United States, 1 F.4d 924 (11th Cir.).
Related legal case
Shivers v. United States
|1 F.4d 924 (11th Cir.)
|Court of Appeals