Opinion
Civil Action No. 98-3092-KHV.
June 27, 2000.
MEMORANDUM AND ORDER
Plaintiff, formerly an inmate at the United States Penitentiary in Leavenworth, Kansas, brings this action under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b), 2671-2680, alleging that prison officials negligently caused the loss of his personal property. This matter comes before the Court on Defendant's Motion To Dismiss Or, Alternatively, Motion For Summary Judgment (Doc. #26) filed April 5, 2000 and plaintiff's Request Foe [sic] Appointment of Counsel (Doc. #31) filed May 5, 2000. For reasons stated below, defendant's motion to dismiss is sustained and plaintiffs motion for appointment of counsel is overruled.
Factual Background
Plaintiff was confined at the United States Penitentiary in Leavenworth, Kansas, from December 12, 1995 until August 21, 1997. On August 30, 1996, plaintiff was placed in administrative detention pending a Special Investigative Service inquiry into allegations that he was pressuring a fellow inmate for sex. On September 4, 1996, prison officials inventoried plaintiffs property on Inmate Personal Property Record forms ("IPPR forms"). On September 26, 1996, on new IPPR forms, plaintiff designated property to be stored during his detention. He signed the forms without indicating that any property was missing or damaged.
On or about August 20, 1997, prison officials inventoried plaintiff's property in preparation for his transfer to the United States Penitentiary in Beaumont, Texas. Initially, plaintiff refused to sign the IPPR form because he alleged that certain personal property, which had been stored during his administrative detention, was missing. Plaintiff alleges that a prison official said that the IPPR form was only for listed items and that he would look into the alleged missing property. After this instruction, plaintiff signed the IPPR form. Upon arriving at USP Beaumont, plaintiff informed the receiving and discharge officer that some of his property was missing.
On March 19, 1998, plaintiff filed a tort claim against the United States, USP Leavenworth, and officers Z. Gregory and J. Sepande. The Court substituted the United States as the sole defendant pursuant to 28 U.S.C. § 2679 (b)(1), 2679(d)(1). See Order (Doc. #25) filed March 13, 2000. The government now asks the Court to dismiss plaintiff's complaint for lack of subject matter jurisdiction because it has not waived immunity for plaintiff's claim. Plaintiff has not responded to defendant's motion but he has asked the Court to appoint counsel.
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, 281 (D. Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see Fed.R.Civ.P. 12(h)(3). Plaintiff sustains the burden of showing that jurisdiction is proper, see Scheideman, 895 F. Supp. at 281 (citing Basso 495 F.2d at 909), 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) (citing Armstrong v. Goldblatt Tool Co., 609 F. Supp. 736, 737 (D. Kan. 1985)).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of either 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) (citing Ohio National Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). Defendant's motion falls within the latter category because it introduces 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.Holt, 46 F.3d at 1003 (citations omitted).
Analysis
I. Defendant's Motion To Dismiss (Doc. #26)
Plaintiff brings his claim against the United States under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 1346 (b), 2671-2680. Sovereign immunity generally bars suits against the United States unless the government has expressly waived its immunity. See National 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). Defendant claims that plaintiff's claim is barred because the United States 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). However, 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) (citing United States v. Kubrick, 444 U.S. 111, 117-18 (1979). The FTCA waiver of sovereign immunity is jurisdictional in nature so that if the action is barred, the Court lacks subject matter jurisdiction over plaintiffs claim. See Bradley, 951 F.2d at 270.
Defendant argues that the Court lacks subject matter jurisdiction over plaintiffs FTCA claim because although the FTCA is a general waiver of sovereign immunity, it contains several exceptions. See 28 U.S.C. § 2680 (a)-(n). One such exception is for
[a]ny 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). Defendant contends that the facts of this case fall within this exception. Plaintiff did not respond to this motion to dismiss for lack of jurisdiction. The Court need only determine whether the facts of this case fall within the meaning of the § 2680(c) exception to the general FTCA waiver of sovereign immunity.
Plaintiff alleges that prison officials negligently caused the loss of his property when he was placed in administrative detention and a portion of his property was stored. Several courts have held that lost property of federal prisoners falls within the meaning of "the detention of any goods or merchandise" under 28 U.S.C. § 2680 (c).See Parmelee v. Carlson, 77 F.3d 486, 1996 WL 64701, at *1 (8th Cir. 1996); Dennison v. United States, No. CIV.A.98-3243-KHV, 2000 WL 206317, at *3 (D. Kan. 2000); Farmer v. Jacobsen, No. 97-2562 RHK RLE, 1998 WL 957237, at *3, 6 (D. Minn. Nov. 30, 1998); Hernandez v. Hawks, No. 5-94-145, 1995 WL 692982, at *3-6 (D. Minn. Sept. 28, 1995). Likewise, this Court finds that when prison officials inventoried and stored plaintiff's property, it was detained under § 2680(c).
The Court also finds that Bureau of Prison officials are "law enforcement officers" under § 2680(c). The Court adopts the reasoning of the Honorable G.T. VanBebber of this Court in Dennison v. United States, No. CIV.A.98-3243-KHV, 2000 WL 206317, at *3 (D. Kan. 2000). As explained in Dennison, it appears that every court to address the issue has held that prison officials are considered "other law enforcement officer[s]" under § 2680(c). See Parmelee, 1996 WL 64701, at *1 (§ 2680(c) bars prisoner's claim that official negligently disposed of prisoner's property during inventory);Farmer, 1998 WL 957237, at *4-6; Hernandez, 1995 WL 692982, at *3-6;Bates v. True, No. 92-C-1637, 1994 WL 148662, at *4 (N.D. Ill. Apr. 21, 1994). These decisions are consistent with the broad scope of the term "law enforcement officer" adopted by the Tenth Circuit and most other circuit courts. See United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir. 1984) (USDA inspectors included),cert. denied, 469 U.S. 825 (1984); see also Halverson v. United States, 972 F.2d 654, 655-56 (5th Cir. 1992) (INS border patrol agents included); Schlaebitz v. United States Dep't. of Justice, 924 F.2d 193, 194 (11th Cir. 1991) (federal Marshals included); Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988) (INS border patrol agents included); Formula One Motors, Ltd. v. United States, 777 F.2d 822, 823 (2nd Cir. 1985) (DEA agents included); United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 397 (9th Cir. 1979) (FAA employees included); but cf. Bazuaye v. United States, 83 F.3d 482 (D.C. Cir. 1996) (postal employees not included);Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994) (§ 2680(c) limited to detention of goods by law enforcement officers acting in tax or customs capacity).
In sum, the facts of this case fall within the § 2680(c) exception to the FTCA general waiver of sovereign immunity. Plaintiff has not shown that the government has waived its sovereign immunity to his claim. Accordingly, the Court lacks subject matter jurisdiction to hear the claim.
In the alternative, defendant seeks summary judgment based on plaintiff's alleged waiver of rights on the IPPR forms. Given that the Court lacks jurisdiction, it need not address this issue.
II. Plaintiff's Motion For Appointment of Counsel (Doc. #31)
Plaintiff is proceeding in forma pauperis and has requested appointment of counsel. Under 28 U.S.C. § 1915, the Court has the discretion to request counsel for such a plaintiff. See Miller v. Glanz, 948 F.2d 1562, 1570 (10th. Cir. 1991) (citing Blankenship v. Meachum, 840 F.2d 741, 743 (10th Cir. 1988) and McCarthy v. Weinberg, 753 F.2d 836 (10th Cir. 1985)). In determining whether to appoint counsel, the Court considers several factors including (1) the merit of the litigant's claims; (2) the nature of the factual issues raised in the claims; (3) the litigant's ability to present his or her claims; and (4) the complexity of the claims involved. Id. The Court finds that plaintiffs claim is without merit because the Court lacks subject matter jurisdiction, the claim does not present difficult factual or legal issues, and that plaintiff's separation from his property during his present administrative detention has no bearing on the resolution of this motion. For these reasons, the Court declines to appoint counsel.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss Or. Alternatively. Motion For Summary Judgment (Doc. #26) filed April 5, 2000, be and hereby is SUSTAINED. The Court dismisses the case for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that plaintiff's Request Foe [sic] Appointment of Counsel (Doc. #31) filed May 5, 2000, be and hereby is OVERRULED.