[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14436 ________________________

D.C. Docket No. 1:16-cv-03396-ELR

ANDY R. JOHNSON,

Plaintiff - Appellant, versus DEXTER WHITE, UNITED STATES OF AMERICA, BRUCE BRYANT, DARLENE DREW, UNKNOWN CORRECTIONS OFFICER,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(February 26, 2021) Before MARTIN, NEWSOM, and BRANCH, Circuit Judges. NEWSOM, Circuit Judge: USCA11 Case: 19-14436 Date Filed: 02/26/2021 Page: 2 of 13

This case—which involves some very disturbing allegations concerning a federal prisoner’s sexual assault and battery at the hands of his captors—requires us to interpret a provision of the Federal Tort Claims Act that authorizes incarcerated felons to sue the United States under certain circumstances. See 28 U.S.C. § 1346(b)(2). Andy Johnson, an inmate in a federal prison, sued several corrections officers, the prison’s warden, and the United States, claiming that the officers restrained him, removed his clothes, and fondled his genitals and buttocks in violation of, among other things, the FTCA. On summary judgment, the district court held that Johnson had failed to demonstrate that he suffered a “physical injury,” as required by § 1346(b)(2). Johnson now appeals, arguing that allegations like his—which he describes as constituting “sexual assault and battery”—satisfy § 1346(b)(2)’s physical-injury requirement.

We affirm the district court’s decision for two reasons: First, Johnson’s reading of § 1346(b)(2) defies the provision’s language and structure, rendering parts of it either superfluous, incoherent, or both. Second, and separately, a 2013 amendment to § 1346(b)(2) strongly indicates Congress’s intent to exclude allegations like Johnson’s from § 1346(b)(2)’s ambit. Needless to say, we don’t for a moment condone the corrections officers’ alleged misconduct. To the contrary, we condemn it in the strongest possible terms. The question here,

2 USCA11 Case: 19-14436 Date Filed: 02/26/2021 Page: 3 of 13

though, is simply whether Johnson’s allegations satisfy the conditions imposed by § 1346(b)(2). We find ourselves constrained to hold that they do not.

I

We begin with the pertinent statutory background. “It is well settled that the United States, as a sovereign entity, is immune from suit unless it consents to be sued,” and that absent a “specific waiver of sovereign immunity as to a particular claim filed against the Government, the court lacks subject matter jurisdiction over the suit.” Zelaya v. United States, 781 F.3d 1315, 1321, 1322 (11th Cir. 2015). The FTCA provides one such waiver and thus permits the government to “be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government.” Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008) (quotation marks omitted).

The FTCA’s waiver of sovereign immunity is limited in several respects. One of those limits is embodied in 28 U.S.C. § 1346(b)(2), which prescribes the circumstances in which incarcerated felons can sue for “mental or emotional injury.” As originally enacted, § 1346(b)(2) stated that—

No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a