Bryant Wilson v. United States

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRYANT LAKEITH WILSON, No. 19-56215

Plaintiff-Appellant, D.C. No. 5:19-cv-01285-FMO-AFM

v. MEMORANDUM*

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Federal prisoner Bryant Lakeith Wilson appeals pro se from the district

court’s judgment in his action alleging deprivation of his personal property. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for lack of subject matter jurisdiction. Bramwell v. U.S. Bureau of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Prisons, 348 F.3d 804, 806 (9th Cir. 2003). We affirm.

The district court properly dismissed Wilson’s action for lack of subject

matter jurisdiction because the Federal Tort Claims Act (“FTCA”) bars claims

against the United States arising out of deprivation of property by a law

enforcement officer, including claims of negligent handling or storage of detained

property. See 28 U.S.C. § 2680(c); Kosak v. United States, 465 U.S. 848, 854

(1984) (exception to FTCA under § 2680(c) includes a claim resulting from

negligent handling or storage of property).

To the extent Wilson sought to allege due process claims against individual

named correctional officers for deprivation of property under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

even if a Bivens remedy is available for such claims, dismissal was proper because

Wilson failed to allege facts sufficient to state a plausible claim. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984) (neither intentional nor negligent deprivation of

property violates due process when an adequate post-deprivation remedy is

available); see also 31 U.S.C. § 3723 (permitting damages claim for property

damages or loss caused by negligence of federal employee acting within scope of

employment); 28 C.F.R. § 542.10 (purpose and scope of Bureau of Prisons

Administrative Remedy Program).

We do not consider matters not specifically and distinctly raised and argued

2 19-56215 in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 19-56215