Opinion
CIVIL ACTION No. 99-3347-GTV
June 26, 2001
MEMORANDUM AND ORDER
This action is before the court on Defendant's Motion to Dismiss or, Alternatively, Motion for Summary Judgment (Doc. 18). Pro se plaintiff Eugene X. Wilson claims that while he was incarcerated at the United States Penitentiary in Leavenworth, Kansas, a correctional officer confiscated forty-five of his religious books valued at $750. Plaintiff claims that he was told that the books would be shipped to his wife, but that his wife never received them.
Plaintiff filed a claim for the alleged value of the lost books with the prison. After the prison denied his claim, plaintiff filed the instant lawsuit against four prison officials under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2671-2680. The Attorney General certified that the prison officials were acting within the scope of their employment, and the prison officials moved to substitute the United States as defendant pursuant to 28 U.S.C. § 2679(d)(1). This court granted the motion to substitute.
The form civil rights complaint that plaintiff filed has boxes that are to be marked to indicate what type of action the plaintiff is filing. Plaintiff failed to check any box. However, plaintiff's allegations most appropriately fall under the FTCA, and the record supports the inference that plaintiff has filed under the FTCA.
The United States now moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. The United States claims that this court lacks jurisdiction because the government has sovereign immunity. The court agrees, and grants the motion to dismiss.
The court notes that plaintiff has a pending motion for extension of time to file a brief regarding the instant motion to dismiss (Doc. 23). Plaintiff has since filed the brief, and the court has considered the brief in reaching this decision. The motion for extension of time is therefore denied as moot.
Under the doctrine of sovereign immunity, the United States is generally protected from lawsuits unless it waives 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) (citations omitted). The FTCA acts as a waiver of sovereign immunity, permitting an action:
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or 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)(1). In permitting such an action, the FTCA confers subject matter jurisdiction on federal courts to hear certain tort claims against the United States. See Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991). However, the FTCA also has several exceptions which limit the waiver of sovereign immunity. See 28 U.S.C. § 2680(a)-(n). When the exceptions apply, a federal court lacks subject matter jurisdiction to hear a claim against the United States. See Hobdy v. United States, 762 F. Supp. 1459, 1461 (D.Kan. 1991). At issue in the instant case is the exception set out in § 2680(c), excepting "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. § 2680(c). The United States claims that the alleged confiscation and loss of plaintiff's books fall within this exception. The court agrees.
For the exception of § 2680(c) to apply in this case, two elements must be met: (1) the claim must "aris[e] in respect of . . . the detention of any goods, merchandise, or other property" and (2) the detention must be by a "law enforcement officer." Several courts, including this court, have held that the misplacement of a prisoner's belongings after an inventory or confiscation arises in respect of the detention of goods. See, e.g., Parmelee v. Carlson, No. 95-1901, 1996 WL 64701, at *1 (8th Cir. Feb. 15, 1996) (holding that loss of inventoried prisoner's property arose in respect of detention of goods or merchandise); Johnson v. United States, No. 98-3092-KHV, 2000 WL 968795, at *3 (D.Kan. June 27, 2000) (same); Dennison v. United States, No. 98-3243-KHV, 2000 WL 206317, at *3 (D.Kan. Jan. 14, 2000) (same). In the instant case, prison officials allegedly confiscated books from plaintiff, a prisoner. The confiscation was a detention of goods. Plaintiff alleges that he was told the books would be shipped to his wife, but that she never received them. Plaintiff's claim for the allegedly lost books arises out of the detention of goods.
Further, several courts, including this court, have held that prison officials are law enforcement officers under § 2680(c). See, e.g., Johnson, 2000 WL 968795, at *3 ("[I]t appears that every court to address the issue has held that prison officials are considered `other law enforcement officer[s]' under § 2680(c)."); Dennison, 2000 WL 206317, at *3 (same). This court in Dennison noted that "[t]hese decisions are consistent with the broad scope of the term `law enforcement officer' adopted by the Tenth Circuit. . . ." 2000 WL 206317, at *3 (citing several cases). Accordingly, the court concludes that the prison officials who allegedly lost or misplaced plaintiff's books are law enforcement officers under § 2680(c).
Plaintiff does not contest whether his case meets the criteria of the § 2680(c) exception. Instead, plaintiff primarily argues that the United States was unfairly substituted as a party for the prison officials. Whether unfair or not, the court was required to substitute the United States as the sole defendant because the Attorney General certified that the prison officials were acting within the scope of their employment. 28 U.S.C. § 2679(d)(1) provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant.
The Supreme Court has recognized that the application of this statute may result in a plaintiff being left without a remedy:
Upon certification, the employee is dismissed from the action and the United States is substituted as defendant. The case then falls under the governance of the . . . [FTCA] . . . . Generally, such cases unfold much as cases do against other employers who concede respondeat superior liability. If, however, an exception to the FTCA shields the United States from suit, the plaintiff may be left without a tort action against any party.
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995). In the instant case, plaintiff is left without a tort action against any party. The United States is the proper defendant, and is protected by sovereign immunity. This court lacks jurisdiction to hear plaintiff's claim.
In sum, the United States has not waived sovereign immunity in this case. The facts of this case fall within exception (c) of 28 U.S.C. § 2680, thereby depriving the court of subject matter jurisdiction over the case.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's Motion to Dismiss or, Alternatively, Motion for Summary Judgment (Doc. 18) is granted. Plaintiff's Motion for a Thirty-Day Extension of Time (Doc. 23) is denied as moot.
The case is closed.
Copies of this order shall be mailed to counsel of record and pro se plaintiff Eugene X. Wilson, USP-Florence, Register No. 51786-060, P.O. Box 7000, Florence, CO 81226-7000.
IT IS SO ORDERED.