OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
Plaintiff Theodore Vickers filed a second amended complaint  asserting a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Officer Jensrud and twenty Doe defendants, and a negligence claim under the Federal Tort Claims Act ("FTCA") against the United States. Defendants moved to dismiss  the Bivens claim on grounds of qualified immunity and the negligence claim under the discretionary function exception to the FTCA. Mr. Vickers filed an opposition , and Defendants replied . I will convert the motion to one for summary judgment as to the Bivens claim and grant the motion as to the negligence claim.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Vickers was an inmate housed at the Federal Correctional Institute in Sheridan ("Sheridan") when the events underlying this action took place. (2d Am. Complaint  at ¶¶ 1, 13.) Officer Jensrud was a Senior Officer at Sheridan. Id. at ¶¶ 3, 14. Mr. Vickers is Caucasian. Id. at ¶ 19. He alleges that on November 21, 2010, Officer Jensrud witnessed "an escalating verbal exchange" between Mr. Vickers and Tommy Lee Vasquez, another inmate and a Latino. Id. at ¶¶ 15, 17, 19, 23. Officer Jensrud did not intervene, but told a fellow officer that he thought a fight was likely. Id. at ¶ 18. Soon afterward he found Mr. Vickers lying on the floor in the cell block, bleeding profusely from injuries to his face. Id. at ¶ 27.
Mr. Vickers filed suit against Officer Jensrud and twenty Doe defendants, alleging that they violated his Eighth Amendment rights by manifesting deliberate indifference to a substantial risk that Mr. Vasquez would attack him. Id. at ¶¶ 32-40. He also alleged a claim of negligence against the United States based on the same conduct. Id. at ¶¶ 41-47.
I. Bivens Claim and Materials Outside the Complaint
Defendants move to dismiss Mr. Vickers's Bivens claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the basis of qualified immunity.
A dismissal under Rule 12(b)(6) based on qualified immunity "is not appropriate unless [the court] can determine, based on the complaint itself, that qualified immunity applies." Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). If the parties present evidence outside the complaint on a Rule 12(b)(6) motion, the court must either disregard the evidence or convert the motion into one for summary judgment. Fed.R.Civ.P. 12(d). The parties must then "be given a reasonable opportunity to present all the material that is pertinent to the motion." Id.
In arguing and opposing Defendants' assertion of qualified immunity, both parties have presented extensive excerpts from testimony at Mr. Vasquez's criminal assault trial, as well as a Sheridan employee's declaration. ( See, e.g., Mr. Vickers's Test. [29-1]; Ofc. Jensrud's Test. [34-1]; Ms. Syed's Decl. .) Each of these materials is evidence outside of the four corners of Mr. Vickers's complaint. Short of excluding the evidence, my only option is to convert Defendants' motion into one for summary judgment as to Mr. Vickers's Bivens claim. I will do so.
II. Discretionary Function Exception
Defendants move to dismiss Mr. Vickers's negligence claim against the United States because Officer Jensrud's actions fall within the discretionary function exception to the FTCA.
An attack under Rule 12(b)(1) of the Federal Rules of Civil Procedure upon the court's subject matter jurisdiction "may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual attack, the court "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id.
The FTCA provides for jurisdiction in the district courts over claims of negligence against the United States. 28 U.S.C. § 1346(b)(1). This waiver of sovereign immunity does not apply, however, to "the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government." 28 U.S.C. § 2680(a). Courts analyze whether conduct falls within this discretionary function exception using a two-part test. Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). The first question is whether the conduct "is a matter of choice." Id. at 536. The exception does not apply if federal law or policy "specifically prescribes a course of action" that a government employee must take. Id. The second is whether the conduct involved "considerations of public policy." Id. at 537. Evidence that the employee actually weighed policy is unnecessary. Terbush v. United States, 516 F.3d 1125, 1136 n.5 (9th Cir. 2008). All that is required is that the decision ...