Caldwell v. United States , 887 F.2d 1089 ( 1989 )

887 F.2d 1089

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Lawrence Daniel CALDWELL, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 88-3911.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 22, 1989.*
Decided Oct. 3, 1989.

Before FERGUSON, CYNTHIA HOLCOMB HALL and KOZINSKI, Circuit Judges.

1

MEMORANDUM**

2

The district court properly dismissed plaintiff's FTCA claim for lack of subject matter jurisdiction, as that claim is barred by sovereign immunity. 28 USC Sec. 2680(c); Kosak v United States, 465 U.S. 848, 854 (1984).

3

Nonetheless, a pro se civil rights plaintiff should be given the opportunity to amend his complaint to overcome any deficiency, unless it clearly appears that the deficiency cannot be overcome by amendment. Noll v Carlson, 809 F2d 1446, 1448 (9th Cir 1987); Gillespie v Civiletti, 629 F2d 637, 640 (9th Cir 1980). Plaintiff may be able to state a claim against specific federal officials for damage to his property seized beyond the scope of the search warrant. See Bivens v Six Unknown Named Agents, 403 U.S. 388, 397 (1971). Plaintiff may also be able to assert jurisdiction under 28 USC Sec. 2680(h), for abuse of process, under the same theory. See Compton v Ide, 732 F2d 1429, 1433 (9th Cir 1984).

4

On remand, the district court shall grant plaintiff leave to amend his complaint.

5

AFFIRMED IN PART and REVERSED AND REMANDED IN PART.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3