Pappas v. United States , 617 F. App'x 879 ( 2015 )


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  •                                                              FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                         June 11, 2015
    Elisabeth A. Shumaker
    Clerk of Court
    MARKOS N. PAPPAS,
    Plaintiff - Appellant,
    v.                                                        No. 14-6197
    (D.C. No. 5:12-CV-00753-F)
    UNITED STATES OF AMERICA,                                 (W.D. Okla.)
    Defendant - Appellee.
    ORDER AND JUDGMENT*
    Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.
    Markos Pappas, a federal prisoner proceeding pro se, appeals the district
    court’s dismissal of his Federal Tort Claims Act (“FTCA”) lawsuit. Exercising
    jurisdiction under 28 U.S.C. § 1291, we affirm.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of this
    appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    I
    Pappas asserted two FTCA claims related to his incarceration at the Federal
    Correctional Institute in El Reno, Oklahoma. He alleged he suffered sleep
    deprivation, torture, and physical and emotional injuries when Bureau of Prisons
    (“BOP”) employees negligently and wrongfully impounded his mattress and bedding
    for 30 days while he was in disciplinary segregation. The bedding was impounded
    from 7 a.m. to 7 p.m. as a disciplinary punishment, though Pappas says he was also
    denied a mattress on five nights. Additionally, he alleged BOP employees
    negligently and wrongfully deprived him of the minimum out-of-cell exercise
    required by federal regulations, resulting in physical and emotional injuries. He
    averred that he repeatedly told BOP officials that staff were falsely stating he had
    refused out-of-cell exercise, but they did not correct the problem.
    The government moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6).
    After considering a series of reports and recommendations by a magistrate judge, the
    district court granted the motion, ruling that it lacked subject matter jurisdiction
    because Pappas failed to state a cognizable FTCA claim. It rejected the
    government’s argument that the discretionary function exception to FTCA liability
    barred Pappas’ claims because it concluded that BOP employees had no discretion:
    they were required by federal regulations to furnish inmates with a mattress and
    bedding at all times, prohibited from segregating an inmate without bedding unless
    prescribed by a medical officer, and required to give inmates a minimum of five
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    hours of out-of-cell exercise each week. See 28 C.F.R. § 541.21.1 But as to the
    remaining central issue, the district court ruled that Pappas failed to point to any
    analogous liability under Oklahoma tort law for a private individual under
    circumstances like those alleged in his complaint. The district court also denied
    Pappas’ Fed. R. Civ. P. 59(e) motion to alter or amend the judgment.
    II
    The FTCA waives the United States’ sovereign immunity for negligence by a
    federal employee, but only to the same extent that a private person would be liable
    under “the law of the place where the act or omission occurred.” 28 U.S.C.
    § 1346(b)(1). The United States can be held liable only “in the same manner and to
    the same extent as a private individual under like circumstances.” § 2674.
    On appeal, Pappas argues the district court: (1) misapplied governing
    authority in ruling that he failed to demonstrate analogous tort liability under
    Oklahoma law; and (2) improperly dismissed his complaint without giving him an
    opportunity to amend. Because Pappas proceeds pro se, we construe his filings
    liberally. See Yang v. Archuleta, 
    525 F.3d 925
    , 927 n.1 (10th Cir. 2008).
    1
    As in effect through July 19, 2011, the applicable regulations stated: “Living
    conditions may not be modified for the purpose of reinforcing acceptable behavior,”
    
    id. § 541.21(b);
    “[s]taff shall furnish a mattress and bedding,” and “[a]n inmate may
    not be segregated without . . . mattress, blankets and pillow, except when prescribed
    by the medical officer for medical or psychiatric reasons,” 
    id. § 541.21(c)(3);
    and
    “[s]taff shall permit each segregated inmate no less than five hours exercise each
    week,” 
    id. § 541.21(c)(6).
    -3-
    A
    To state a cognizable claim under § 1346(b), the FTCA’s jurisdictional grant, a
    complaint must allege the elements of that provision, including, as relevant to the
    case at bar, that a private person would be liable to the plaintiff under the tort law of
    the state where the act or omission occurred. FDIC v. Meyer, 
    510 U.S. 471
    , 477
    (1994) (listing the six elements necessary under § 1346(b)). A claim that fails to
    allege facts sufficient to meet this requirement must be dismissed for lack of subject
    matter jurisdiction. Dorking Genetics v. United States, 
    76 F.3d 1261
    , 1264 (2d Cir.
    1996). We review de novo the district court’s dismissal under Rule 12(b)(1) and
    (b)(6). Colo. Envtl. Coal. v. Wenker, 
    353 F.3d 1221
    , 1227 (10th Cir. 2004).
    Pappas argues that the district court’s decision conflicts with a Supreme Court
    decision, United States v. Muniz, 
    374 U.S. 150
    (1963). We disagree. In Muniz, the
    Court held that prisoners may sue the United States under the FTCA for injuries
    sustained in a federal prison caused by a federal employee’s negligence, but only to
    the extent that a private individual under like circumstances would be liable under the
    applicable state law. 
    Id. at 153
    (citing § 2674). The Muniz decision includes a
    statement, on which Pappas focuses, that “the duty of care owed by the [BOP] to
    federal prisoners is fixed by 18 U.S.C. § 4042, independent of an inconsistent state
    
    law.” 347 U.S. at 164-65
    .
    Section 4042 requires that the BOP “provide for the safekeeping, care, and
    subsistence” of persons in its custody. § 4042(a)(2). Pappas argues that, under
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    Muniz, the duty of care in § 4042 trumps any inconsistent Oklahoma duty of care.
    We need not address that question because the duty of care established by § 4042
    does not appear inconsistent with Oklahoma law, which has noted the general rule
    that custodial personnel “must exercise reasonable care and diligence to protect those
    in [their] custody from known or reasonably perceivable dangers.” Seiler v. City of
    Bethany, 
    746 P.2d 699
    , 700 (Okla. Ct. App. 1987) (citing Restatement (2d) of Torts,
    § 314A(4) (quotation omitted)).
    The district court dismissed Pappas’ complaint not because there is no
    Oklahoma duty to use reasonable care with persons in custody, but because Pappas
    did not demonstrate that conduct by a private person akin to that alleged in his
    complaint would constitute a violation of the duty of care under Oklahoma law.
    Pappas argues the district court failed to identify any Oklahoma state law that would
    bar his claim, but the court was under no obligation to do so. As the party averring
    jurisdiction, Pappas—the FTCA plaintiff—bears the burden of proof to establish that
    the court possesses subject-matter jurisdiction based upon analogous Oklahoma
    private liability. See Miller v. United States, 
    710 F.2d 656
    , 662 (10th Cir. 1983)
    (holding plaintiff bears the burden of proving the district court has subject matter
    jurisdiction to consider FTCA claim); see also Kokkonen v. Guardian Life Ins. Co. of
    Am., 
    511 U.S. 375
    , 377 (1994) (holding the law presumes that a cause lies outside
    the limited jurisdiction of the federal courts and “the burden of establishing the
    contrary rests upon the party asserting jurisdiction”).
    -5-
    Pappas asserts that the district court misapplied a Tenth Circuit decision,
    Howard v. Zimmer, Inc., 
    718 F.3d 1209
    (10th Cir. 2013) (“Howard II”). Following
    the Oklahoma Supreme Court’s answer to our certified question, this court held in
    Howard II that a private individual may maintain a claim for negligence per se in
    Oklahoma against a medical-device manufacturer based on a violation of a Federal
    Food, Drug, and Cosmetic Act 
    regulation. 718 F.3d at 1210
    (citing Howard v.
    Zimmer, Inc., 
    299 P.3d 463
    , 467 (Okla. 2013) (“Howard I”)). In his reply brief,
    Pappas argues the violation of the governing BOP regulations was sufficient under
    Howard I to assert a “negligence per se” tort claim under Oklahoma law.
    The district court rejected Pappas’ reliance on Howard I because Pappas’
    claims were not analogous to the medical-device claims and federal regulations at
    issue in Howard I, nor did he demonstrate that a private person could maintain a
    negligence per se claim in Oklahoma based on any Oklahoma regulations analogous
    to § 541.21. This analysis is sound. It is axiomatic that “[t]he violation of a federal
    regulation in and of itself is not a basis for liability under the FTCA.” Black Hills
    Aviation, Inc. v. United States, 
    34 F.3d 968
    , 973 n.2 (10th Cir. 1994). “Even if
    specific behavior is statutorily required of a federal employee, the government is not
    liable under the FTCA unless state law recognizes a comparable liability for private
    persons.” Ayala v. United States, 
    49 F.3d 607
    , 610 (10th Cir. 1995). Unlike
    regulations applicable to medical devices, Bureau of Prisons regulations have no
    application outside of the Bureau of Prisons. Further, Howard I did not broadly hold,
    -6-
    as Pappas asserts, that all violations of a federal regulation are negligence per se in
    Oklahoma. Rather, Howard I stated Oklahoma “allows” such a claim; set forth what
    a plaintiff must show in order to claim that the violation of a particular regulation is
    negligence per se; and then applied this test to a negligence claim which asserted that
    an implant failed because the medical-device manufacturer left oily residue on the
    implant in violation of federal 
    regulations. 299 P.3d at 467-73
    . The district court
    correctly concluded that Pappas failed to demonstrate that Oklahoma would impose
    negligence-per-se liability on a private individual under “like circumstances” to those
    described in Pappas’ complaint, as is jurisdictionally required by § 1346(b) and
    § 2674. We conclude that the district court did not err in dismissing Pappas’ FTCA
    claims.
    B
    In his Rule 59(e) motion, Pappas asked the district court to set aside the
    judgment so he could amend his complaint. Pappas repeatedly stated an intention to
    amend his complaint in his pre-judgment pleadings, yet failed to seek timely leave to
    amend before entry of judgment. After entry of judgment, Pappas could not file an
    amended complaint unless the judgment was set aside or vacated. See Cooper v.
    Shumway, 
    780 F.2d 27
    , 29 (10th Cir. 1985) (per curiam) (“[O]nce judgment is
    entered the filing of an amended complaint is not permissible until judgment is set
    aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).”). The district court
    found no justification for a post-judgment amendment. We review that decision for
    -7-
    an abuse of discretion. The Tool Box, Inc. v. Ogden City Corp., 
    419 F.3d 1084
    ,
    1086-87 (10th Cir. 2005).
    We conclude that the district court did not abuse its discretion. Pappas seeks
    an amendment to argue that the district court misapplied Oklahoma law and failed to
    identify any Oklahoma law that would bar his claims. He also seeks to provide more
    detailed arguments about the BOP’s duty of care under § 4042. As explained above,
    all of these arguments are meritless. Thus, the district court did not abuse its
    discretion in denying amendment on these grounds. Pappas also argues he should be
    permitted to amend to assert the elements of an Oklahoma intentional-infliction-of-
    emotional-distress claim because his allegations, singly or in combination, might
    state such a claim under Oklahoma law. The district court acted within its discretion
    to deny amendment because Pappas failed to identify how he would meet the
    pleading requirements for such a claim.
    III
    We AFFIRM the district court’s judgment, GRANT Pappas’ motion to
    proceed in forma pauperis, and remind him of his obligation to continue making
    partial payments until the filing fee is paid in full.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
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