[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-13897

Non-Argument Calendar

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D.C. Docket No. 5:09-cv-00192-CAR

JEANNIE L. COSBY, 

 Plaintiff - Appellant,

versus

UNITED STATES MARSHALS SERVICE,

 Defendant,

UNITED STATES OF AMERICA, 

 Defendant - Appellee.

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Appeal from the United States District Court

for the Middle District of Georgia

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(May 29, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:

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Jeannie Cosby, a prisoner proceeding pro se, appeals the district court’s 

dismissal of her Federal Tort Claims Act (FTCA) suit for lack of subject matter 

jurisdiction. After thorough review, we affirm.

Cosby sued the United States under the FTCA, 28 U.S.C. § 1346(b)(1). As 

relevant to this appeal, she alleged: (1) the United States Marshals Service 

(USMS) negligently failed to provide appropriate medical care and did not follow 

transfer procedures for inmates with severe medical conditions; and (2) the Bureau 

of Prisons (BOP) negligently failed to follow a doctor’s recommended course of 

treatment, causing the partial amputation of her right foot. The district court 

ordered the parties to brief whether the discretionary function exception of the 

FTCA divested the court of subject matter jurisdiction. Upon review, the court 

found that the USMS’s and BOP’s decisions about Cosby’s medical care 

“inherently involve[d] an element of choice and [were] grounded in several policy 

considerations.” Accordingly, it concluded that the discretionary-function 

exception applied and dismissed the case for lack of subject matter jurisdiction. 

Cosby now appeals.

We review de novo the district court’s dismissal for want of subject matter 

jurisdiction. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997). “The 

FTCA waives the United States government’s sovereign immunity from suit in 

federal courts for the negligent actions of its employees.” Id. The discretionary 

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function exception, however, exempts from this waiver claims “based upon the 

exercise or performance or the failure to exercise or perform a discretionary 

function or duty.” 28 U.S.C. § 2680(a).

We apply a two-prong test to determine the applicability of the discretionary 

function exception. Where both prongs are met, the exception applies and the 

court lacks subject matter jurisdiction. See U.S. Aviation Underwriters, Inc. v. 

United States, 562 F.3d 1297, 1299 (11th Cir. 2009). The first prong asks whether 

the challenged acts are “discretionary in nature” – that is, if they “involve an 

element of judgment or choice.” Gaubert v. United States, 499 U.S. 315, 322 

(1991) (internal quotation marks omitted). “[T]he first prong of the exception is 

satisfied unless ‘a federal statute, regulation or policy specifically prescribes a 

course of action for an employee to follow.’” OSI, Inc. v. United States, 285 F.3d 

947, 952 (11th Cir. 2002) (quoting Berkovitz v. United States, 486 U.S. 531, 534 

(1988)). The second prong instructs that “the exception protects only 

governmental actions and decisions based on considerations of public policy.” 

Gaubert, 499 U.S. at 323 (internal quotation marks omitted). “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 325. If the decision could objectively be 

made on policy grounds within the discretion afforded the decisionmaker, then “we 

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presume that the act was grounded in policy whenever that discretion is 

employed.” OSI, Inc., 285 F.3d at 951. And the agent need not actually have 

weighed policy considerations to be protected by the exception. Id. at 950-51.

Cosby argues that the USMS is liable under the FTCA for violating USMS 

Directive for Prisoner Operations 9.4, which governs prisoner health. First, she 

contends that the USMS negligently failed to provide adequate care for her foot 

condition. Under that directive, “[t]he USMS will ensure that all USMS prisoners 

receive medically necessary health care services,” including treatment for “limbthreatening . . . conditions.” Directive 9.4, Prisoner Health Care, ¶ (C)(1). 

Importantly, Cosby does not argue that she received no medical care, only that the 

care she received was inadequate. Because Directive 9.4 does not “‘specifically 

prescribe[] a course of action’” for USMS employees to follow when a prisoner 

needs medical care, the decision about what specific type of care to provide is a 

discretionary matter that satisfies the first prong of the exception. OSI, Inc., 285 

F.3d at 952 (quoting Berkovitz, 486 U.S. at 534). The directive is also susceptible 

to policy analysis because, in determining the precise course of medical treatment

to pursue, several policy considerations are relevant, including prison security, the 

allocation of finite resources, and the logistics of prisoner transportation if transfer 

to an off-site facility is an option. The second prong of the discretionary function 

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exception is therefore satisfied, and the district court correctly concluded it lacked 

subject matter jurisdiction to consider this issue. See Gaubert, 499 U.S. at 322-23.

Next, Cosby asserts that the USMS was negligent in transferring her to 

several facilities instead of allowing her to remain at one until her medical 

treatment was complete. But again, the discretionary function exception bars her 

claim. Directive 9.4 outlines “Medical Clearance Requirements for Prisoner 

Movement or Transfer” and provides that “USM[S] district management will 

ensure proper arrangements are made to provide continuity of medical care for 

USMS prisoners.” Directive 9.4, Prisoner Health Care, ¶ 9(a)(4). Although the

Directive sets forth “Requirements” for the transfer of prisoners requiring medical 

care, the “proper arrangements” to be made in each individual case are necessarily

left to the discretion of USMS employees. See id. And those decisions are

susceptible to policy analysis because USMS officials must consider which 

facilities have space available and the placement of the prisoner in a facility that 

provides an appropriate level of security. Thus, the discretionary function 

exception applies and the district court correctly dismissed this claim. See 

Gaubert, 499 U.S. at 322-23; cf. Cohen v. United States, 151 F.3d 1338, 1345

(11th Cir. 1998) (“[T]he BOP’s actions in classifying prisoners and placing them in 

institutions involve conduct or decisions that fall within the discretionary function 

exception . . . .”).

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Finally, Cosby argues that the BOP is liable under the FTCA for violating 18 

U.S.C. § 4042. That statute mandates that the BOP “provide for the safekeeping, 

care and subsistence” of all persons in its custody. 18 U.S.C. § 4042(a)(2). We 

have previously stated that “even if § 4042 imposes on the BOP a general duty of 

care to safeguard prisoners, the BOP retains sufficient discretion in the means it 

may use to fulfill that duty to trigger the discretionary function exception.” Cohen, 

151 F.3d at 1342. Hence, the district court correctly dismissed this claim for lack

of subject matter jurisdiction.

For the foregoing reasons, the district court’s dismissal of Cosby’s claims 

for want of subject matter jurisdiction is

AFFIRMED.

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