Abdus-Shahid M.S. Ali v. Federal Bureau of Prisons , 204 F. App'x 778 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 19, 2006
No. 06-11468 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02986-CV-ODE-1
ABDUS-SHAHID M.S. ALI,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS,
MR. LIPPIN, Director of F.B.O.P,
WARDEN R. WILEY, U.S.P. Atlanta
MR. QUN'ANIS,
UNITED STATES,
Defendants-Appellees,
SOUTHEAST REGIONAL DIRECTOR,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 19, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Abdus-Shahid M.S. Ali (“Ali”) appeals the district court’s
dismissal of his civil action brought pursuant to: (1) the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346 and 2671 et seq.; (2) the Religious Freedom
Restoration Act of 1995 (“RFRA”), 42 U.S.C. 2000bb et seq.; (3) the Religious
Land Use and Institutionalized Persons Act of 2000 (“RLUA”), 42 U.S.C. §
2000cc et seq.; (4) and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 395, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971).
According to his complaint, Ali was transferred from a federal prison in Atlanta,
Georgia to a prison in Inez, Kentucky. Ali discovered upon his arrival in Kentucky
that several religious and personal items were missing from his belongings. After
the Federal Bureau of Prisons (“BOP”) rejected Ali’s administrative claim under
the FTCA, Ali filed suit in federal court. The district court dismissed Ali’s FTCA
claim for lack of subject matter jurisdiction because the United States did not
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waive sovereign immunity; the court dismissed Ali’s non-FTCA claims for lack of
exhaustion of administrative remedies. On appeal, Ali argues that the prison
officers who mishandled his belongings do not fall within an exception to the
waiver of sovereign immunity for FTCA claims. Ali also argues that the district
court erred in failing to convert the defendants’ motion to dismiss into a motion for
summary judgment.
We review de novo the grant of a motion to dismiss for want of subject
matter jurisdiction. Milan Express, Inc. v. Averitt Express, Inc., 208 F.3d 975, 978
(11th Cir. 2000). In determining whether subject matter jurisdiction exists, a court
is permitted to investigate widely and has authority to look beyond the pleadings.
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (stating that a court
may review matters outside the pleadings, including testimony and affidavits).
First, Ali argues on appeal the district court erred in dismissing his FTCA
claim because the court interpreted the exclusion to the FTCA found under 28
U.S.C. 2680(c) too broadly. The FTCA provides a waiver of the United States’
sovereign immunity to suits for damages attributed to its employees acting within
the scope of their employment, if said employees would be liable to the claimant
individually under the law of the situs. 28 U.S.C. § 1346(b)(1). Congress has
promulgated a number of exceptions to this waiver of sovereign immunity,
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including 28 U.S.C. § 2680(c), which exempts “[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.” (emphasis added).
The United States Supreme Court has interpreted § 2680(c) broadly to cover
not only damages arising from the detention of goods or merchandise, but also
situations in which damages result from their negligent storage or handling. Kosak
v. United States, 465 U.S. 848, 854-59, 104 S. Ct. 1519, 1523-25, 79 L. Ed. 2d 860(1984). The definition of “any other law-enforcement officer,” within the meaning
of § 2680(c) has been addressed by this circuit and sister circuit courts of appeal.
Schlaebitz v. United States Dep’t of Justice, 924 F.2d 193 (11th Cir. 1991). In
Schlaebitz, we held that U.S. Marshals, who were allegedly negligent in releasing a
parolee’s luggage to a third party, were “law-enforcement officers” within the
meaning of the FTCA exception in § 2680(c). 924 F.2d at 195; see also United
States v. Potes Ramirez, 260 F.3d 1310, 1315-16 (11th Cir. 2001).
After reviewing the record, we conclude that the district court did not err in
finding that the officers who handled Ali’s property fall within the exception found
in 28 U.S.C. § 2680(c). See Schlaebitz, 924 F.2d at 194-95. Accordingly, the
district court did not err in dismissing Ali’s FTCA claim for want of subject matter
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jurisdiction under Fed. R. Civ. P. 12(b)(1).
Next, Ali argues on appeal the district court should have turned the motion
to dismiss into a motion for summary judgment because the district court
considered materials that the defendant had submitted outside of the complaint.
Ali argues that had he been given notice of a motion for summary judgment, he
would have submitted additional affidavits or other evidence to counter the
defendants’ position.
We review de novo a district court’s dismissal of a prisoner’s action for
failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).
Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000). Pursuant to
§ 1997e(a), “No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” A civil action with respect to “prison conditions” means
“any civil proceeding arising under Federal law with respect to the conditions of
confinement or the effects of actions by government officials on the lives of
persons confined in prison.” 18 U.S.C. § 3626(g)(2); Higginbottom, 223 F.3d at
1260.
We have explained that “Congress now has mandated exhaustion in section
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1997e(a) and there is no longer discretion to waive the exhaustion requirement. . . .
[E]xhaustion is now a pre-condition to suit . . . .” Alexander v. Hawk, 159 F.3d
1321, 1325-26 (11th Cir. 1998) (emphasis added); see also Leal v. Georgia
Department of Corrections, 254 F.3d 1276, 1279 (11th Cir. 2001) (same). We
have also concluded that “[a] claim that fails to allege the requisite exhaustion of
remedies is tantamount to one that fails to state a claim upon which relief may be
granted.” Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998).
Here, Ali failed to provide any information that would indicate he exhausted
the administrative remedies for his non-FTCA claims. Therefore, Ali’s claims are
“tantamount” to claims that “fail to state a claim upon which relief may be
granted” because Ali failed to “allege the requisite exhaustion of remedies” for his
non-FTCA claims. See Rivera, 144 F.3d at 731.
Lastly, Ali alleged below and on appeal that he would have exhausted his
administrative remedies if prison officials had not misled him into thinking he only
needed to file one claim form in order to pursue both his FTCA and non-FTCA
claims. The district court recognized this argument and proceeded to find that
“[t]he statement made to Plaintiff about filing a standard-form 95 specifically
related to his FTCA claim.” The question arises of whether the district court’s
treatment of Ali’s statements were more akin to the analysis for a summary
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judgment motion. If so, we must decide whether the exhaustion requirements under
the PLRA can be waived if a prisoner is misled into believing he has satisfied
administrative procedures.
On review of a motion to dismiss, we will accept all allegations in the
complaint as true and construe facts in a light most favorable to the plaintiff.
Harper v. Thomas, 988 F.2d 101, 103 (11th Cir. 1993). A complaint should not be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S.
41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Marsh v. Butler County, Ala.,
268 F.3d 1014, 1022 (11th Cir. 2001) (en banc).
After reviewing the record, we conclude that it is unclear whether Ali was in
fact misled by prison officials which may excuse the exhaustion requirement.
Therefore, we vacate the district court’s dismissal of Ali’s non-FTCA claims and
remand this case for the district court to decide this issue in the first instance.
AFFIRMED in part, VACATED in part, and REMANDED.
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