Francisco Perea v. United States Bureau of ( 2018 )


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  •      Case: 18-50392      Document: 00514742176         Page: 1    Date Filed: 11/29/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-50392                       FILED
    November 29, 2018
    Lyle W. Cayce
    FRANCISCO PEREA,                                                         Clerk
    Plaintiff - Appellant
    v.
    UNITED STATES OF AMERICA; UNITED STATES BUREAU OF PRISONS,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 1:18-CV-190
    Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
    PER CURIAM: *
    Francisco Perea, federal prisoner # 12117-031, brought a claim under the
    Federal Tort Claims Act (FTCA) against the United States and the United
    States Bureau of Prisons for misplacing his possessions when he was
    transferred between federal correctional institutions. The district court
    dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C.
    § 2680(c). Perea now moves this court for leave to proceed in forma pauperis
    (IFP) on appeal.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 18-50392     Document: 00514742176      Page: 2    Date Filed: 11/29/2018
    No. 18-50392
    To proceed IFP, Perea must demonstrate financial eligibility and a
    nonfrivolous issue for appeal. See Carson v. Polley, 
    689 F.2d 562
    , 586 (5th Cir.
    1982). In determining whether a nonfrivolous issue exists, this court’s inquiry
    “is limited to whether the appeal involves legal points arguable on their merits
    (and therefore not frivolous).” Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir.
    1983) (internal quotation marks and citation omitted). “[W]here the merits are
    so intertwined with the certification decision as to constitute the same issue,”
    we may deny the IFP motion and dismiss the appeal sua sponte if it is frivolous.
    Baugh v. Taylor, 
    117 F.3d 197
    , 202 & n.24 (5th Cir. 1997); see 5TH CIR. R. 42.2.
    The FTCA is a limited waiver of the Government’s sovereign immunity
    and permits suits against it for certain tort claims. 28 U.S.C. § 2674. However,
    exceptions in § 2680 preserve the Government’s sovereign immunity.              See
    Tsolmon v. United States, 
    841 F.3d 378
    , 382 (5th Cir. 2016). If an exception
    applies, the FTCA claim is barred, and a federal court lacks subject matter
    jurisdiction over the claim. See Campos v. United States, 
    888 F.3d 724
    , 730
    (5th Cir. 2018), petition for cert. filed (Aug. 22, 2018) (No. 18-234).
    Subsection (c) of 28 U.S.C. § 2680 preserves the Government’s sovereign
    immunity against “[a]ny claim arising in respect of . . . the detention of any
    goods, merchandise, or other property by . . . any other law enforcement
    officer.” The Supreme Court has interpreted this provision to cover prison staff
    accused of negligently misplacing prisoners’ possessions. See Ali v. Fed. Bureau
    of Prisons, 
    552 U.S. 214
    , 215–17 (2008). Accordingly, Perea has not
    demonstrated that he will raise a nonfrivolous issue on appeal.
    Accordingly, Perea’s motion to proceed IFP is DENIED and the appeal is
    DISMISSED as frivolous. 
    Howard, 707 F.2d at 220
    ; see 
    Baugh, 117 F.3d at 202
    n.24; 5TH CIR. R. 42.2.
    2