Suhardy v. Garcia

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 24, 2000
• Docket: 00-50433
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50433 Summary Calendar

SUHARDY,

Petitioner-Appellant,

versus

LUIS GARCIA, District Director, Immigration and Naturalization Service,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CV-280-F -------------------- October 23, 2000

Before HIGGINBOTHAM, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

Suhardy (#A076-394-192), a detainee at the Immigration and

Naturalization Service Processing Center in El Paso, Texas, filed

an action on a 28 U.S.C. § 2254 form alleging that his luggage

and personal belonging had been seized when he was detained at

the Sierra Blanca checkpoint. Suhardy complained that his

luggage and personal belongings had not been returned. The

district court treated the document as an application for habeas

relief under § 2254 and dismissed the action as frivolous.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Suhardy does not contend that he should be permitted to

pursue his claim in a § 2254 action. Instead, Suhardy contends

that his original pleading should have been construed liberally

as a civil complaint under the Federal Tort Claims Act ("FTCA"),

28 U.S.C. §§ 2671-80. See Haines v. Kerner, 404 U.S. 519, 520

(1972). The district court does not have jurisdiction over

Suhardy's FTCA claim because the United States has not waived its

sovereign immunity as to such claims. Halverson v. United

States, 972 F.2d 654, 655 (5th Cir. 1992). Therefore, the

district court did not err in failing to construe the § 2254

application as a complaint under the FTCA.

AFFIRMED.