Vance Marcel Gibson v. N.e. Regional Dir. Henry J. Sadowski

ALD-81 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-4677
___________
VANCE MARCEL GIBSON,
Appellant
v.
N.E. REGIONAL DIR. HENRY J. SADOWSKI;
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cv-00242)
District Judge: Honorable Maurice B. Cohill, Jr.
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 23, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: January 29, 2009)
_________
OPINION
_________
PER CURIAM
Vance Marcel Gibson, a federal prisoner proceeding pro se, appeals the dismissal
of his lawsuit alleging violations of the Federal Tort Claims Act (“FTCA”). Because the
appeal presents no substantial question, we will summarily affirm. LAR 27.4; I.O.P.

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Initially, the District Court did not adopt the Magistrate Judge’s broad interpretation1
of the phrase “other law enforcement officers.” The United States filed a motion for
reconsideration, which the District Court granted, essentially holding that a 2000
amendment to § 2680(c) demonstrated that it applied to BOP corrections officers.
2
10.6.
In August 2004, Gibson filed a complaint, which he later amended, under the
Federal Torts Claims Act (“FTCA”), alleging that Bureau of Prisons (“BOP”) staff lost or
destroyed various items of his personal property while he was incarcerated at FCI-
McKean. The amended complaint named as defendants the United States of America and
Henry J. Sadowski, Northeast Regional Counsel of the BOP. Gibson sought $237.52 in
monetary damages, plus $20,000 in compensatory damages for “cruel and unusual
punishment.” The defendants filed a motion to dismiss, or in the alternative, for summary
judgment. The matter was referred to a Magistrate Judge, who recommended granting the
defendants’ motion. The United States District Court for the Western District of
Pennsylvania ultimately agreed, holding (1) that Gibson had failed to exhaust his
administrative remedies with respect to certain claims; (2) that it lacked jurisdiction over
Gibson’s request for compensatory damages because it exceeded the amount of the claim
presented to the BOP; (3) that Defendant Sadowski was not a proper party under the
FTCA; and (4) that the BOP officers who allegedly lost his property qualify as “other law
enforcement officers” for purposes of 28 U.S.C. § 2680(c), thereby exempting them from
the FTCA’s general waiver of sovereign immunity. Gibson appealed.1

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3
Appellate jurisdiction exists under 28 U.S.C. § 1291, and we may affirm on any
basis supported by the record. See Fairview Township v. EPA, 773 F.2d 517, 525 n.15
(3d Cir. 1985).
The FTCA waives the United States’ sovereign immunity for claims arising out of
torts committed by federal employees “under circumstances where . . . a private person
. . . would be liable” under applicable state tort law. See 28 U.S.C. § 1346(b)(1). But the
FTCA exempts from this waiver certain claims, including “[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.” § 2680(c). When the District Court considered Gibson’s claims,
there was disagreement among the Courts of Appeals as to whether this provision applied
only to officers performing customs or excise functions, or if it applied to all law
enforcement officers. See ABC v. DEF, 500 F.3d 103, 106 (2d Cir. 2007) (noting split of
authority on the issue). Since then, however, the United States Supreme Court has held
that claims against corrections officers who are accused of mishandling an inmate’s
property fall with the FTCA’s exception to the United States’ waiver of sovereign
immunity. See Ali v. Fed. Bureau of Prisons, – U.S. –, 128 S. Ct. 831, 840-41 (2008).
Therefore, because Gibson’s claims are barred by the exception to tort liability found in
§ 2680(c), the District Court properly dismissed the lawsuit for lack of subject matter
jurisdiction. See id.; see also Kosak v. United States, 465 U.S. 848, 854 (1984) (holding

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that phrase “any claim arising in respect of” the detention of goods means any claim
“arising out of” the detention of goods, and includes a claim resulting from negligent
handling or storage of detained property.).
We will summarily affirm the order of the District Court.
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