United States Court of Appeals 

for the Fifth Circuit 

No. 19-40932 

Bryan Kerr Dickson, 

Plaintiff—Appellant, 

versus

United States of America, 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 1:14-CV-250 

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Plaintiff-Appellant Bryan Kerr Dickson, a former prisoner at the 

United States Penitentiary in Beaumont, Texas (“USP Beaumont”), filed 

suit, pro se, against the United States under the Federal Tort Claims Act 

(“FTCA”), asserting both negligence and intentional tort claims.1

 He alleges 

1

 In the district court, Dickson expressly disavowed that he was pursuing 

constitutional claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau 

of Narcotics, 403 U.S. 388 (1971). Therefore, although Dickson appears to assert 

constitutional claims in his appellate brief, we decline to consider them. See In re Deepwater 

Horizon, 857 F.3d 246, 251 (5th Cir. 2017) (“[A]rguments not raised before the district 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 23, 2021 

Lyle W. Cayce 

Clerk 

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No. 19-40932 

2 

that Bureau of Prisons (“BOP”) officials caused him a variety of harm while 

he was incarcerated at USP Beaumont. The district court dismissed both his 

negligence and intentional tort claims for lack of subject matter jurisdiction, 

holding that the United States had not waived its sovereign immunity. We 

AFFIRM in part, REVERSE in part, and REMAND for further 

proceedings. 

I. 

In his complaint, Dickson alleges that the BOP transferred him to USP 

Beaumont and housed him in the general population despite his expressed 

fears that he would be targeted for violence by other inmates due to his 

convictions for possession and production of child pornography. After the 

BOP allegedly ignored his concerns, Dickson was assaulted by another 

inmate. Following the assault—which Dickson did not initially report and 

instead came to light after BOP staff noticed his injuries—Dickson was 

transferred from the general population to the Special Housing Unit 

(“SHU”) for a threat assessment. While in the SHU, Dickson alleges that 

the BOP denied him mental health treatment as well as access to the law 

library, administrative remedy forms, reading materials, adequate clothing 

and personal hygiene items. He further alleges that BOP staff encouraged 

him to commit suicide, destroyed legal documents, poisoned his food, made 

disparaging sexual remarks, and housed him in a cell without clothing for 

extended periods of time. 

While still in the SHU, Dickson attempted to commit suicide, 

allegedly after BOP staff ignored his request to speak to someone at 

psychological services to treat his suicidal thoughts. Following the suicide 

court are waived and cannot be raised for the first time on appeal.” (quoting LeMaire v. La. 

Dep’t of Transp. & Dev. 480 F.3d 383, 387 (5th Cir. 2007))). 

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attempt, Dickson alleges he was again assaulted by another inmate, this time 

in front of BOP staff who ignored the assault. 

For these alleged harms, Dickson filed suit and sought damages, 

medical treatment, attorney’s fees, and release from confinement. The 

Government moved to dismiss Dickson’s complaint under Federal Rules of 

Civil Procedure 12(b)(1) and (b)(6), arguing that the district court lacked 

subject matter jurisdiction and that Dickson’s complaint failed to state a 

claim. 

The district court granted the motion, holding that it lacked subject 

matter jurisdiction over Dickson’s negligence and intentional tort claims. 

With respect to the negligence claims, the district court concluded that the 

“discretionary function exception” to the FTCA’s waiver of sovereign 

immunity applied and that, as a result, the court lacked subject matter 

jurisdiction over those claims. With respect to the intentional tort claims, the 

district court held that the “law enforcement proviso” to the FTCA’s 

intentional tort exception did not apply, and thus the court likewise lacked 

subject matter jurisdiction over the claims.

Dickson timely appealed, arguing that the district court erred in its 

application of the discretionary function exception and the law enforcement 

proviso. We take each issue in turn. 

II. 

 “We review de novo the district court’s order granting the 

Government’s motion to dismiss under Federal Rule of Civil Procedure 

12(b)(1) for lack of subject matter jurisdiction.” Spotts v. United States, 613 

F.3d 559, 565 (5th Cir. 2010) (citation omitted); see also City of Austin v. 

Paxton, 943 F.3d 993, 997 (5th Cir. 2019) (“We review the district court’s 

jurisdictional determination of sovereign immunity de novo.”). For a 

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12(b)(1) motion, the general burden is on the party asserting jurisdiction. 

Castro v. United States, 608 F.3d 266, 268 (5th Cir. 2010) (en banc).

III. 

The FTCA waives sovereign immunity and permits suit against the 

United States for monetary claims sounding in state tort law that allege 

negligent or wrongful acts committed by government employees. Spotts, 613 

F.3d at 566 (citing 28 U.S.C. § 2674). This waiver, however, is subject to 

various exceptions which preserve the United States’ sovereign immunity. 

Id. One such exception is known as the “discretionary function exception.” 

Id. (citing 28 U.S.C. § 2680). “The discretionary function exception 

withdraws the FTCA’s waiver of sovereign immunity in situations in which, 

although a government employee’s actions may have been actionable under 

state tort law, those actions were required by, or were within the discretion 

committed to, that employee under federal statute, regulation, or policy.” Id. 

“At the pleading stage, [the] plaintiff must invoke the court’s jurisdiction by 

alleging a claim that is facially outside of the discretionary function 

exception.” St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 

556 F.3d 307, 315 & n.3 (5th Cir. 2009). 

 To determine whether the discretionary function exception applies, 

the Supreme Court has developed a two-part test. Spotts, 613 F.3d at 567 

(citing United States v. Gaubert, 499 U.S. 315, 322-23 (1991)). 

First, courts must determine whether the challenged act involves an 

element of judgment or choice on the part of the employee. Gaubert, 499 U.S. 

at 322. For example, “[i]f a statute, regulation, or policy leaves it to a federal 

agency to determine when and how to take action, the agency is not bound to 

act in a particular manner and the exercise of its authority is discretionary.” 

Spotts, 613 F.3d at 567 (citing Gaubert, 499 U.S. at 329). Conversely, if an 

employee violates a mandatory directive in a federal statute, regulation, or 

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policy, “there will be no shelter from liability because there is no room for 

choice and the action will be contrary to policy.” Gaubert, 499 U.S. at 324. 

Second, “‘even assuming the challenged conduct involves an element 

of judgment,’ and does not violate a nondiscretionary duty, we must still 

decide whether the ‘judgment is of the kind that the discretionary function 

exception was designed to shield.’” Spotts, 613 F.3d at 568 (quoting Gaubert, 

499 U.S. at 322-23). As the Supreme Court describes, the exception is 

designed to protect “only governmental actions and decisions based on 

considerations of public policy.” Gaubert, 499 U.S. at 323 (quoting Berkovitz 

by Berkovitz v. United States, 486 U.S. 531, 537 (1988)). As such, “if a 

regulation allows the employee discretion, the very existence of the 

regulation creates a strong presumption that a discretionary act authorized 

by the regulation involves consideration of the same policies which led to the 

promulgation of the regulations.” Id. at 324. 

Here, Dickson’s complaint does not precisely describe which 

employee actions he is challenging as the basis of his negligence claims. 

Nevertheless, the district court fairly construed his complaint as asserting 

that BOP officials acted negligently in transferring him to USP Beaumont and 

in housing him in the general population despite his concerns for his safety. 

And it correctly held that those challenged actions are encompassed by the 

discretionary function exception.

As the district court held, federal statutes confer discretion on the 

BOP to classify prisoners and place them in institutions in accordance with 

public policy. See Cohen v. United States, 151 F.3d 1338, 1343 (11th Cir. 1998) 

(citing 18 U.S.C. §§ 3621, 4081). Thus, “decisions regarding the transfers 

and classifications of prisoners generally fall within the discretionary function 

exception.” Patel v. United States, 398 F. App’x 22, 29 (5th Cir. 2010) (per 

curiam) (unpublished). The same is generally true for decisions to place a 

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prisoner within the general population of a specific institution. See Ashford v. 

United States, 463 F. App’x 387, 394 (5th Cir. 2012) (per curiam) 

(unpublished). 

While it may be possible that other policies remove components of this 

general discretion under certain circumstances, see id. at 392–94, Dickson has 

not identified any such policy or otherwise alleged that the BOP violated a 

nondiscretionary duty when it placed him within the general population at 

USP Beaumont. He has thus not met his burden to demonstrate that the 

discretionary function exception does not apply to his claim. See St. Tammany 

Parish, 556 F.3d at 315. 

The same is true of other grievances contained in Dickson’s complaint 

that could be construed as negligence claims. For example, while Dickson 

generally alleges that his requests for mental health treatment were denied, 

he does not allege that those denials violated nondiscretionary duties or that 

they were discretionary decisions not based on considerations of public 

policy. See Lopez v. U.S. Immigr. & Customs Enf’t, 455 F. App’x 427, 432–34 

(5th Cir. 2011) (unpublished). Indeed, the regulations he generally invokes 

are not pertinent to the challenged actions. See, e.g., 28 C.F.R. § 549.70-72 

(governing the charging of fees for health care services administered to 

inmates).

We therefore AFFIRM the district court’s decision to dismiss 

Dickson’s negligence claims for lack of subject matter jurisdiction. 

IV. 

 Another exception to the FTCA’s waiver of sovereign immunity is the 

“intentional tort exception,” which “preserves the Government’s immunity 

from suit for ‘[a]ny claim arising out of assault, battery, false imprisonment, 

false arrest, malicious prosecution, abuse of process, libel, slander, 

misrepresentation, deceit, or interference with contract rights.’” Millbrook v. 

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United States, 569 U.S. 50, 52 (2013) (citing 28 U.S.C. § 2680(h)). But this 

exception itself has an exception. The “law enforcement proviso” to the 

intentional tort exception “extends the waiver of sovereign immunity to 

claims for six intentional torts[2] . . . that are based on the ‘acts or omissions 

of investigative or law enforcement officers.’” Id. at 52–53 (citing 28 U.S.C. 

§ 2680(h)). In short, if the “law enforcement proviso” applies, sovereign 

immunity is waived. Id. 

 Here, Dickson’s complaint asserts claims for the intentional torts of 

assault, battery, false arrest, abuse of process, and intentional infliction of 

emotional distress. In deciding whether it had subject matter jurisdiction over 

these claims, the district court first noted—correctly—that BOP officials are 

“law enforcement officers” within the meaning of the law enforcement 

proviso. Chapa v. United States, 339 F.3d 388, 390 (5th Cir. 2003) (per 

curiam). Nevertheless, citing this court’s unpublished decision in Cross v. 

United States, 159 F. App’x 572, 575 (5th Cir. 2005), the district court held 

that the law enforcement proviso did not apply to the allegations in Dickson’s 

complaint because the defendant BOP officials were not acting in an 

investigative or law enforcement capacity when allegedly committing the 

torts. See id. at 576. In other words, although the defendant BOP officers had 

the status of law enforcement officers within the meaning of the law 

enforcement proviso, they were not engaged in law enforcement activities 

when allegedly committing the torts and thus the proviso did not apply. See 

id.

 The problem with our holding in Cross—and the district court’s 

reliance on it—is that the Supreme Court has since explicitly rejected this 

2

 These six intentional torts are: assault, battery, false imprisonment, false arrest, 

abuse of process, and malicious prosecution. 28 U.S.C. § 2680(h). 

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“status” versus “activities” distinction for purposes of the law enforcement 

proviso. In Millbrook, the Court made clear that only the former matters. 569 

U.S. at 57 (“We hold that the waiver effected by the law enforcement proviso 

extends to acts or omissions of law enforcement officers that arise within the 

scope of their employment, regardless of whether the officers are engaged in 

investigative or law enforcement activity . . . .”); accord Campos v. United 

States, 888 F.3d 724, 737 (5th Cir. 2018). 

 The Government did not cite Millbrook below or in its initial brief here. 

But in a supplemental letter submitted to this court, the Government 

acknowledges that Millbrook controls and concedes that Dickson’s 

intentional tort claims should be remanded to the district court for further 

consideration. We therefore REVERSE the district court’s decision 

dismissing Dickson’s intentional tort claims for lack of jurisdiction and 

REMAND this case for further proceedings. On remand, the only remaining 

question for the district court to determine with respect to whether the law 

enforcement proviso applies is whether the BOP officials were acting within 

the scope of their employment when committing the alleged torts.3 See 

3

 Intentional infliction of emotional distress (“IIED”) is not an intentional tort that 

is excepted from the FTCA’s waiver of sovereign immunity. Truman v. United States, 26 

F.3d 592, 593 (5th Cir. 1994). Nevertheless, the district court held that it lacked jurisdiction 

over Dickson’s IIED claim because it “arises out of” his alleged assault and false 

imprisonment. See id. at 594 (holding that a non-excepted tort claim can still be barred 

“when the underlying governmental conduct ‘essential’ to the plaintiff’s claim can fairly 

be read to ‘arise out of’ conduct that would establish an excepted cause of action” (quoting 

McNeily v. United States, 6 F.3d 343, 347 (5th Cir. 1993))). We disagree. Dickson alleges 

conduct—for example, that BOP officials encouraged him to commit suicide and made 

disparaging remarks about his genitals—that are not derivative of an assault or false 

imprisonment claim. See id. at 594–95; see also Brennan v. Mercedes Benz USA, 388 F.3d 133, 

136 (5th Cir. 2004) (describing the elements of IIED under Texas law). Therefore, even if 

the district court determines on remand that the BOP officials were not acting within the 

scope of their employment—thus rendering the law enforcement proviso inapplicable—

Dickson’s IIED claim would not be jurisdictionally barred as arising out of an excepted 

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Millbrook, 569 U.S. at 55 & n.3; see also Humphries v. Elliott Co., 760 F.3d 414, 

418 (5th Cir. 2014) (“It is the general rule . . . that a federal appellate court 

does not consider an issue not passed upon below.” (quoting Singleton v. 

Wulff, 428 U.S. 106, 120 (1976))). As that remains a threshold jurisdictional 

inquiry, the district court must address the question before considering any 

alternative motion under Rule 12(b)(6). Ermuraki v. Renaud, 987 F.3d 384, 

386 (5th Cir. 2021) (per curiam). 

V. 

 We AFFIRM the dismissal of Dickson’s negligence claims. We 

REVERSE the dismissal of Dickson’s intentional tort claims and 

REMAND for further proceedings. 

IT IS FURTHER ORDERED that Dickson’s unopposed motion 

to unseal the record and this appeal is GRANTED, and that his motion for 

summary judgment and motion to expedite the appeal are DENIED as 

moot.

cause of action. But while jurisdiction over the claim may exist, we make no comment on 

whether Dickson’s allegations sufficiently plead an IIED claim for purposes of surviving a 

Rule 12(b)(6) motion. 

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