A prisoner brought a suit for negligence and intentional infliction of emotional distress under the Federal Tort Claims Act, 28 U.S.C. sec. 2671. He alleged that prison officials failed to enforce no-smoking regulations, including the punishment of offenders and inflicted emotional distress on him by subjecting him to ETS. The government moved to dismiss for want of subject matter jurisdiction and summary judgment. The District Court granted the motion and dismissed the suit with prejudice. The U.S. Court of Appeals for the Fifth Circuit affirmed the judgment, ruling that “the government has waived sovereign immunity with regard to suits based on the alleged negligent acts of its employees. That waiver, however, is limited.” The Court of Appeals noted that “the waiver of immunity does not extend to ‘[a]ny claim based upon…[a government employee’s] failure to exercise or perform a discretionary function….’” The discretionary nature of the regulations (28 C.F.R. sec. 551.163(c)(2002)) that Santos relied on to bring his lawsuit means that “each of Santos’s claims of negligence is barred by the discretionary function exception.” See Elliott, J., “Dismissal Upheld by Court,” Clarion-Ledger (Jackson, MS), April 23, 2006.
5:03-CV-507 (U.S.C.A. 5th Cir. 2006).
