NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 22, 2009*
Decided December 22, 2009
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3737
SCOTTER R. CLARK, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 04‐CV‐862‐WDS
UNITED STATES OF AMERICA, et al., William D. Stiehl,
Defendants‐Appellees. Judge.
O R D E R
Employees at the federal prison in Greenville, Illinois, confiscated and destroyed
347 photographs belonging to inmate Scotter Clark. Clark refused an offer to settle for $135
and instead filed suit against the United States under the Federal Tort Claims Act (“FTCA”).
See
28 U.S.C. §§ 1346(b)(1), 2671–80. He later amended his complaint to add a second claim
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971),
alleging that six prison employees had engaged in a pattern of harassment to retaliate for
his lawsuit. The district court dismissed both claims, the first on the basis of sovereign
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐3737 Page 2
immunity, see
28 U.S.C. § 2680(c), and the second for failure to exhaust administrative
remedies, see 42 U.S.C. § 1997e(a). Clark appeals.
The FTCA’s waiver of sovereign immunity does not apply to claims involving the
detention of property “by any officer of customs or excise or any other law enforcement
officer.”
28 U.S.C. § 2680(c). At the time Clark filed his complaint, we interpreted the
phrase “any other law enforcement officer” to include only those officers performing
customs or excise duties. See Dahler v. United States,
473 F.3d 769, 772 (7th Cir. 2007); Ortloff
v. United States,
335 F.3d 652, 657–58 (7th Cir. 2003). But while Clark’s case was pending,
the Supreme Court announced that the phrase encompasses all law‐enforcement officers,
including Bureau of Prisons employees. See Ali v. Fed. Bureau of Prisons,
128 S. Ct. 831, 834
(2008). Reasoning that the Supreme Court’s controlling interpretation of § 2680(c) was
entitled to “full retroactive effect in all cases still open on direct review,” see Harper v. Va.
Dep’t of Taxation,
509 U.S. 86, 97 (1993), the district court held that the United States was
immune from Clark’s FTCA claim.
Clark apparently accepts that Ali’s interpretation of § 2680(c) applies to this
litigation, see Parrott v. United States,
536 F.3d 629, 635 (7th Cir. 2008), but he seeks to dodge
Ali by asking us to consider equitable factors and fashion a remedy for his loss; after all, he
insists, he was relying on our erroneous interpretation of § 2680(c) when he decided to sue
instead of accepting the Bureau of Prisons’ offer of compensation. But Clark’s reliance on
our mistaken view of § 2680(c) does not thwart Harper’s rule of retroactivity, see Reynoldsville
Casket Co. v. Hyde,
514 U.S. 749, 759 (1995), and thus we are not free to evaluate whether
applying the Supreme Court’s controlling interpretation of that provision “would be
inequitable or undermine reliance interests,” see Felzen v. Andreas,
134 F.3d 873, 877 (7th Cir.
1998). See also Mojica v. Gannett Co.,
7 F.3d 552, 564 (7th Cir. 1993) (“Judicial interpretations
‘change the law’ from (losing) litigants’ perspective, but from the judicial perspective the
process of interpretation aims at getting as close as one can to a meaning that predates the
litigation.”).
As for Clark’s retaliation claim, the district court acknowledged that Clark had filed
a formal grievance with the warden at Greenville. See
28 C.F.R. § 542.14. But the district
court reasoned that after the warden denied that grievance on the ground that Clark had
failed to first attempt an informal resolution, see
id. § 542.13(a), Clark should have appealed
the decision to either the prison’s regional director or general counsel, see id. § 542.15(a).
And because Clark did not, the district court concluded, he did not comply with the
exhaustion requirement of 42 U.S.C. § 1997e(a).
No. 08‐3737 Page 3
In this court, Clark does not defend his failure to appeal the warden’s rejection of his
formal grievance. Instead he points out that inmates are not required to exhaust
administrative remedies that prison officials have made unavailable through interference,
see Kaba v. Stepp,
458 F.3d 678, 684 (7th Cir. 2006), and he cites the affidavit he submitted to
the district court attesting that after the warden’s decision, he was refused the necessary
forms to attempt an informal resolution. That affidavit does not explain the failure to file an
administrative appeal, and more importantly, it was not submitted until after a magistrate
judge had recommended granting the prison employees’ motion for summary judgment.
Until then, Clark had said nothing about staff interference; instead he had said repeatedly
that he deemed further efforts to use the grievance process futile and thus had not bothered.
The district court, in adopting the magistrate judge’s report and recommendation, did not
abuse its discretion by refusing to consider the late‐submitted affidavit and indulge Clark’s
belated attempt to change his story. See
28 U.S.C. § 636(b)(1); Jasty v. Wright Med. Tech., Inc.,
528 F.3d 28, 33–34 (1st Cir. 2008); Doe v. Chao,
306 F.3d 170, 183 n.9 (4th Cir. 2002); United
States v. Howell,
231 F.3d 615, 621–22 (9th Cir. 2000). And apart from the affidavit, Clark has
no answer to the district court’s determination that he failed to exhaust his administrative
remedies.
AFFIRMED.
