Opinion
CIVIL ACTION NO. 01-3242-KHV
March 6, 2002
MEMORANDUM AND ORDER
Plaintiff, an inmate at the United States Penitentiary in Leavenworth, Kansas, brings this action under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., alleging that prison officials wrongfully retained his postage stamps. This matter is before the Court on Defendant's Motion To Dismiss Or, Alternatively, Motion For Summary Judgment (Doc. #8) filed December 20, 2001 and plaintiff's Memorandum In Opposition Of United States' Motion To Dismiss Or, In The Alternative, For Summary Judgment Against Plaintiff, And Plaintiffs' Counter Motion For Summary Judgment (Doc. #11) filed January 18, 2002. For reasons set forth below, the Court sustains defendant's motion and overrules plaintiff's motion.
Factual Background Plaintiff is currently confined at the United States Penitentiary in Leavenworth, Kansas. On December 4, 1998, after two incidents which involved inmate use of weapons, the acting warden placed the institution on lockdown status for approximately ten days. On December 7, 1998, the acting warden informed all inmates of his intent to confiscate any property in their possession which exceeded that allowed by Bureau of Prisons ("BOP") policy. Inmates had the choice of donating the property to the institution or having it mailed to a person of their choice, at government expense. Before property would be mailed, however, an inmate had to establish ownership of the property within seven days following the receipt of a property inventory form.
Pursuant to BOP policy, an inmate may possess only that property which (1) the inmate is authorized to retain upon admission to the institution, (2) is issued while the inmate is in custody, (3) the inmate purchases in the institution commissary, or (4) is approved by staff to be mailed to, or otherwise received, by the inmate. Inmates frequently use postage stamps as a form of currency within the institution. Prison staff often locate large quantities of postage stamps being held by inmates for gambling and other illicit purposes. Postage stamps in excess of six books are subject to confiscation under BOP policy.
During the search of plaintiff's cell on December 11, 1998, prison officials confiscated 1,718 postage stamps worth approximately $550.00. On December 18, 1998, they returned six books of stamps to plaintiff. Plaintiff did not provide proof of ownership of the remaining postage stamps. Prison officials held the postage stamps for an additional 120 days to afford plaintiff the opportunity to obtain proof of ownership and/or appeal the decision through the administrative remedy program. Plaintiff failed to provide proof of ownership within the additional 120 days and the stamps were released to the USP Leavenworth Business Office for distribution to indigent inmates. According to plaintiff's personal property record dated March 11, 1998, he arrived at USP Leavenworth with 80 standard 32 cent stamps (four books). Plaintiff's commissary receipts between March 6, 1998 and December 11, 1998 indicated that plaintiff had purchased two stamps on April 2, 1998.
Plaintiff originally filed his tort claim against the prison officials, but the Court substituted the United States as the sole defendant pursuant to 28 U.S.C. § 2672. See Order (Doc. #4) filed July 26, 2001. The government asks the Court to dismiss plaintiff's complaint because it has not waived immunity for plaintiff's claim.
Motion To Dismiss Standards
The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 280 (D.Kan. 1995) (citing Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed.R.Civ.P. 12(h)(3). Plaintiff sustains the burden of showing that jurisdiction is proper, see id., and he must demonstrate that the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D.Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of those allegations. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendant's motion falls within the latter category because it relies on evidence outside the complaint. In such event, the Tenth Circuit has set forth the following standard:
A party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1003 (citations omitted). Here, the pertinent jurisdictional facts are uncontested.
Analysis Plaintiff brings his claim pursuant to the Federal Tort Claims Act ("FTCA"). Defendant argues that the Court lacks subject matter jurisdiction over plaintiff's claim because the government has not waived immunity for plaintiff's claim. Under the FTCA, the United States is liable for money damages for personal injuries caused by a governmental employee acting within the scope of his employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The FTCA is a general waiver of sovereign immunity, but it contains several exceptions. See 28 U.S.C. § 2680(a)-(n).
Sovereign immunity generally bars suits against the United States unless the government has expressly waived its immunity. See Nat'l Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245-46 (10th Cir. 1989). "A party suing the United States, its agencies or officers, must allege both a basis for the court's jurisdiction and a specific statute containing a waiver of the government's immunity from suit." Thomas v. Pierce, 662 F. Supp. 519, 523 (D.Kan. 1987). Because the FTCA constitutes a waiver of the sovereign immunity of the United States, the Court must strictly construe it in order to prevent expanding the waiver beyond what Congress intended. See Pipkin v. United States Postal Serv., 951 F.2d 272, 275 (10th Cir. 1991); Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991). The FTCA waiver of sovereign immunity is jurisdictional in nature so that if the action is barred, the Court lacks subject matter jurisdiction over plaintiff's claim. See id. One of the exceptions to the FTCA general waiver of sovereign immunity is for
(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer.28 U.S.C. § 2680(c).
Plaintiff does not dispute that the stamps were "detained" by "law enforcement officers" within the meaning of Section 2680(c) and that his claim arises out of the detention of the stamps. See Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (district court lacked jurisdiction to hear claim for personal property detained and mailed to inmate's mother); Wilson v. United States, No. 01-3224, 2002 WL 12260, at *2 (10th Cir. Jan. 4, 2002); Parmelee v. Carlson, 77 F.3d 486, 1996 WL 64701, at *1 (8th Cir. 1996); Johnson v. United States, No. 98-3092-KHV, 2000 WL 968795, at *3 (D.Kan. June 27, 2000); Dennison v. United States, No. 98-3243-KHV, 2000 WL 206317, at *3 (D.Kan. Jan. 14, 2000). Plaintiff argues, however, that postage stamps are monetary instruments, not "goods or merchandise" within the meaning of Section 2680(c).
On April 25, 2000, Section 2680(c) was amended to provide that it applies to the detention of "any goods, merchandise, or other property." 28 U.S.C. § 2680(c) (emphasis added). Postage stamps certainly would fall under the definition of other property. For purposes of this Memorandum And Order, however, the Court assumes that this amendment does not apply retroactively to plaintiff's claim — which accrued in December 1998. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 237 (1995) ("statutes do not apply retroactively unless Congress expressly states that they do"); Landgraf v. USI Film Prods., 511 U.S. 244, 277 (1994) (well-settled presumption against retroactive application of statutes unless Congress expressly evidences its intent otherwise).
The Court starts with the assumption that "the legislative purpose is expressed by the ordinary meaning of the words used." Kosak v. United States, 465 U.S. 848, 853 (1984) (internal quotations and citations omitted). To ascertain the scope of Section 2680(c), the Court must "identify those circumstances which are within the words and reason of the exception — no less and no more." Id. at 853 n. 9. The FTCA does not define "goods" but the term ordinarily is defined as "tangible movable personal property having intrinsic value usually excluding money and other choses in action but sometimes including all personal property." Webster's Third New Int'l (Unabridged) Dictionary (1993) at 978; see United States v. Roberts, 88 F.3d 872, 877 (10th Cir. 1996) (if Congress does not define term, "its common and ordinary usage may be obtained by reference to a dictionary"). Postage stamps are personal property and therefore, they constitute "goods" under the statute. See generally Kendrick v. Bland, 586 F. Supp. 1536, 1546 (W.D.Ky. 1984) ("each inmate has an institutional account from which he can draw in order to buy a variety of goods from the canteen, including writing supplies and stamps"). Plaintiff himself concedes that postage stamps are "personal property." See Memorandum In Opposition Of United States' Motion To Dismiss Or, In The Alternative, For Summary Judgment Against Plaintiff, And Plaintiffs' Counter Motion For Summary Judgment (Doc. #11) filed January 18, 2002 at 6, 8. Moreover, several courts have broadly interpreted the term "goods" within Section 2680(c) to include monetary instruments such as cash. See United States v. $149,345 United States Currency, 747 F.2d 1278, 1283 (9th Cir. 1984) (cash); Haughton v. Fed. Bureau of Investigation, No. 98-CIV-3418, 1999 WL 1133346, at *6 (S.D.N.Y. Dec. 10, 1999) (bonds). See generally Patton v. Brady, 184 U.S. 608, 613 (1902) (term "goods" in unrelated statute is broad enough to include money).
Even if the Court applied the more restrictive definition of "goods" which excludes "money" and other "choses in action," the government would be immune from plaintiff's FTCA claim. Postage stamps are tangible personal property having intrinsic value, but they are not "money" or other "choses in action." See Webster's Third New Int'l (Unabridged) Dictionary (1993) at 1458 (money defined as "something generally accepted as a medium of exchange, a measure of value, or a means of payment"); id. at 399 (chose in action defined as "any right to a personal as opposed to a real thing that is not in one's possession or actual enjoyment but is recoverable by suit at law," such as debts, stocks or negotiable instruments). The fact that many prisoners may use stamps as a type of currency does not transform them into a "generally accepted medium of exchange" as that phrase is commonly understood. Id. at 1458; see Black's Law Dictionary (7th Ed. 1999) (money defined as "medium of exchange authorized or adopted by a government as part of its currency") (emphasis added). Drugs, guns and sex are "accepted mediums of exchange" by some individuals, but those items are not money.
Plaintiff has failed to show that the government has waived its sovereign immunity with respect to his FTCA claim. Accordingly, the Court lacks subject matter jurisdiction to hear his claim.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss Or, Alternatively, Motion For Summary Judgment (Doc. #8) filed December 20, 2001 be and hereby is SUSTAINED. The Court dismisses the case for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that plaintiff's Memorandum In Opposition Of United States' Motion To Dismiss Or, In The Alternative, For Summary Judgment Against Plaintiff, And Plaintiffs' Counter Motion For Summary Judgment (Doc. #11) filed January 18, 2002 be and hereby is OVERRULED.