FTCA Prison Housing Decisions Remain Discretionary, and Limited Pepper-Spray Use Does Not Establish Florida Battery Absent Clearly Excessive Force

Case: David A. Diehl v. United States
Court: Court of Appeals for the Eleventh Circuit (Non-Argument Calendar; Not for Publication)
Date: 2026-02-03

Introduction

David A. Diehl, a federal prisoner proceeding pro se, brought a civil action against the United States arising from two events in a federal facility: (1) officials allegedly negligently assigned him a dangerous cellmate who attacked him; and (2) a corrections officer allegedly committed battery by deploying pepper spray into Diehl’s cell after the incident.

The appeal presented three clusters of issues:

• Jurisdiction/FTCA: whether the Federal Tort Claims Act claim for negligent cell assignment is barred by the FTCA’s discretionary-function exception.
• Case management/discovery: whether various discovery rulings (striking a filing, denying an extension, denying a motion to compel, and denying reconsideration) were an abuse of discretion.
• Merits of force claim: whether summary judgment was proper on an FTCA battery claim governed by Florida law, given the record on the reasonableness/excessiveness of the pepper-spray use.

Summary of the Opinion

Analysis

1) Precedents Cited and Their Role

FTCA discretionary-function framework

• Cohen v. United States, 151 F.3d 1338 (11th Cir. 1998): Provided the controlling two-step test (judgment/choice; then policy grounding) and, critically, held that prisoner classification and placement decisions are “policy-laden” and protected by the discretionary-function exception. The panel treated this as dispositive.
• Shivers v. United States, 1 F.4th 924 (11th Cir. 2021): Reinforced that housing a prisoner with a dangerous or unstable cellmate “falls squarely” within the exception. The Diehl panel used Shivers to reject attempts to distinguish based on foreseeability of violence.
• United States v. Gaubert, 499 U.S. 315 (1991): Cited for the Supreme Court’s formulation that the exception applies unless federal law “specifically prescribes” a course of conduct—supporting a broad protective scope where officials retain judgment.
• Martin v. United States, 605 U.S. 395 (2025): Cited for sequencing—courts address merits only if the claim survives the discretionary-function exception. This underscores that the dismissal is jurisdictional, not a merits determination.
• Cohen v. United States, 252 F. Supp. 679 (N.D. Ga. 1966), rev'd, 389 F.2d 689 (5th Cir. 1967): Invoked by Diehl to argue foreseeability defeats discretion, but the panel dismissed it as non-binding and contrary to controlling Eleventh Circuit authority.

Discovery and scheduling discipline

• United States v. R&F Properties of Lake Cnty., Inc., 433 F.3d 1349 (11th Cir. 2005): Set the abuse-of-discretion standard for discovery rulings.
• Betty K Agencies, Ltd v. M/V Monada, 432 F.3d 1333 (11th Cir. 2005): Explained that discretion is a “range of choice,” reversed only if outside that range or based on legal mistake.
• Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292 (11th Cir. 2011): Required a showing of “substantial harm” to overturn discovery decisions.
• Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007) (per curiam): Emphasized that pro se litigants receive liberal construction but must comply with procedural rules.
• Sosa v. Airprint Sys., 133 F.3d 1417 (11th Cir. 1998): Provided the “good cause” standard for modifying schedules—diligence is the touchstone.

Summary judgment record and evidentiary competency

• Smith v. LePage, 834 F.3d 1285 (11th Cir. 2016) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Supplied core standards for genuine disputes of material fact.
• Benson v. Tocco, Inc., 113 F.3d 1203 (11th Cir. 1997): Reinforced viewing evidence in the light most favorable to the non-movant.
• Chapman v. Al Transp., 229 F.3d 1012 (11th Cir. 2000): Limited appellate review to the evidence that was before the district court on summary judgment.
• Wright v. City of St. Petersburg, Fla., 833 F.3d 1291 (11th Cir. 2016): Allowed affirmance on any ground supported by the record.
• Roy v. Ivy, 53 F.4th 1338 (11th Cir. 2022): Critical to Diehl’s evidentiary shortfall; unsworn statements are incompetent at summary judgment unless compliant with 28 U.S.C. § 1746.

Florida battery/excessive force and pepper spray

• Quilling v. Price, 894 So. 2d 1061 (Fla. 5th Dist. Ct. App. 2005): Defined battery under Florida law (harmful/offensive contact with intent).
• City of Miami v. Sanders, 672 So. 2d 46 (Fla. 3d Dist. Ct. App. 1996): Supplied the “reasonable under the circumstances” focus and the presumption of good faith; liability only if force is “clearly excessive.”
• McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003): Provided persuasive force-reasonableness guidance about pepper spray being “especially noninvasive” and often reasonable against potentially violent suspects.
• Graham v. Connor, 490 U.S. 386 (1989): Used for the “reasonable officer on the scene” framing, reinforcing objective evaluation of force.
• Jones v. Shields, 207 F.3d 491 (8th Cir. 2000): Offered comparative support that limited pepper spray can be a “tempered response” in a custodial context.

2) Legal Reasoning

A. FTCA negligent cell assignment: discretionary-function exception

The court applied the established discretionary-function analysis as articulated in Cohen v. United States and consistent with United States v. Gaubert. Diehl’s negligent-assignment theory necessarily attacked how prison officials exercised judgment in housing placement—an area the Eleventh Circuit has already characterized as intertwined with prison security and administration.

The opinion treated Diehl’s foreseeability argument as legally irrelevant under controlling precedent: even where risk might be foreseeable, housing decisions remain discretionary because they entail operational and policy tradeoffs (institutional security, resource allocation, classification judgments) that Congress meant to insulate from FTCA liability. Relying on Shivers v. United States and Cohen v. United States (151 F.3d 1338), the panel concluded dismissal for lack of subject-matter jurisdiction was required.

B. Discovery rulings: strict enforcement of scheduling orders and deadlines

Using the abuse-of-discretion framework from United States v. R&F Properties of Lake Cnty., Inc. and related cases, the panel upheld:

• Striking the amended discovery request: The district court reasonably treated the filing as a discovery request meant to be served on the government, not filed with the court.
• Denying an extension: Under Rule 16(b)(4) and Sosa v. Airprint Sys., Diehl failed to show good cause—his later request was untimely under the scheduling order, and the government had responded to the timely requests.
• Denying the motion to compel: The motion itself was late and lacked a showing of good cause/excusable neglect; the court also addressed merits.
• Denying reconsideration/objections: Because the underlying rulings were within discretion, they were not “clearly erroneous or contrary to law” under Rule 72(a).

A notable subtext is institutional: while pro se litigants are read generously, Albra v. Advan, Inc. confirms they must comply with rules that keep litigation manageable.

C. Battery claim: admissible evidence and Florida’s “clearly excessive” threshold

The panel affirmed summary judgment because Diehl’s version of events was presented in an unsworn declaration that did not satisfy 28 U.S.C. § 1746, as explained in Roy v. Ivy. That evidentiary gap mattered because it reduced Diehl’s ability to create a genuine dispute of material fact on key points.

On the law, Florida battery in the law-enforcement/corrections force context turns on reasonableness under the circumstances and a presumption of good faith, with liability only for “clearly excessive” force under City of Miami v. Sanders. The court also looked to Florida’s statutory authorization for corrections force (including to defend against imminent unlawful force, quell disturbances, and overcome resistance) in Fla. Stat. § 944.35 and contractor-force provisions in Fla. Stat. § 944.105.

Even crediting Diehl’s narrative in part (e.g., he was attacked and the officer arrived after the initial assault), the court emphasized the salient, largely undisputed context: a dangerous inmate had just caused injury, and the officer was alone. Under that setting, the limited deployment described (a short burst through a food slot, followed by restraint, decontamination, and medical evaluation) was not objectively unreasonable and did not meet the “clearly excessive” threshold. The panel’s reliance on McCormick v. City of Fort Lauderdale (pepper spray as typically temporary and often reasonable) and the “reasonable officer on the scene” lens from Graham v. Connor supported that conclusion.

3) Impact

• Reinforcement of jurisdictional barriers to FTCA prison-housing suits: The decision underscores that, within the Eleventh Circuit, claims framed as negligent cell assignment are typically jurisdictionally barred by the discretionary-function exception, consistent with Cohen v. United States and Shivers v. United States. Practically, plaintiffs must identify a specific, mandatory federal directive that removes official choice to avoid dismissal.
• Procedural rigor in pro se prisoner litigation: The affirmance of deadline-based rulings signals that failure to serve discovery properly, meet scheduling cutoffs, and timely file motions will commonly be fatal absent a strong showing of diligence and good cause.
• Evidence formality at summary judgment: The § 1746 point is outcome-significant. Prisoner-plaintiffs often rely on narrative declarations; this opinion highlights that failing to include “under penalty of perjury” language can render the statement unusable to defeat summary judgment.
• Florida force/battery claims under the FTCA: By applying City of Miami v. Sanders and treating limited pepper spray as generally compatible with reasonableness, the opinion may encourage defendants to frame pepper-spray deployments as controlled, minimal interventions—especially where safety concerns and staffing limitations are documented.

Complex Concepts Simplified

• FTCA (Federal Tort Claims Act): A statute that allows people to sue the United States for certain torts committed by federal employees, using the tort law of the state where it happened.
• Sovereign immunity: The default rule that the government cannot be sued unless it consents; the FTCA is a limited consent.
• Discretionary-function exception (28 U.S.C. § 2680(a)): Even when the FTCA otherwise allows suit, the government is not liable for acts involving judgment-based decisions tied to policy considerations. If it applies, the court lacks subject-matter jurisdiction and must dismiss.
• “Specifically prescribes” requirement: To escape the exception, a plaintiff must point to a federal statute/regulation/policy that requires a particular action—leaving no choice.
• Scheduling order / good cause (Rule 16): Court-set deadlines control the case. Extensions require showing diligence and that the schedule could not be met despite that diligence.
• Summary judgment (Rule 56): The court enters judgment without a trial if there is no genuine dispute over important facts and the law favors the movant.
• Unsworn declaration problem (28 U.S.C. § 1746): To use a declaration like an affidavit, it must be signed, dated, and state it is true “under penalty of perjury.” Without that, it typically cannot create a fact dispute at summary judgment.
• Florida “presumption of good faith” in officer force cases: Under City of Miami v. Sanders, an officer is presumed to have acted in good faith; a plaintiff must show the force was “clearly excessive.”

Conclusion

The Eleventh Circuit’s disposition in David A. Diehl v. United States is a tightly reasoned application of established doctrine: (1) negligent inmate housing-placement claims are generally barred by the FTCA discretionary-function exception under Cohen v. United States and Shivers v. United States; (2) district courts have wide latitude to enforce discovery schedules, and pro se status does not excuse missed deadlines; and (3) under Florida law, a battery theory premised on pepper spray requires evidence that the force was not merely arguably unnecessary, but “clearly excessive” in context—especially in light of the presumption of good faith—and evidentiary defects (like non-§ 1746 declarations) can be decisive at summary judgment.