UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENNIS WALKNER,

Plaintiff - Appellant,

No. 01-3225
v.	(D.C. No. 00-CV-3030-GTV)
UNITED STATES OF AMERICA,

Defendant - Appellee.

(D. Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.

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). The case is therefore submitted without oral argument.

Dennis Walkner, a prisoner incarcerated in the United States Penitentiary in Leavenworth, Kansas, filed this action against several prison officials seeking compensation for the loss of three paintings, which he valued at $600. According to Mr. Walkner, a corrections officer removed the paintings from his cell during an institution-wide "shake-down" on December 12, 1998. Rec. doc. 1 (Compl. filed Jan. 28, 2000). Prison officials told Mr. Walkner that they would mail the paintings to a person whom he designated. However, that person never received the paintings.

The district court read Mr. Walkner's complaint as asserting a cause of action for negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680.1 Upon the Attorney General's certification that the named individual defendants were acting in the scope of their employment, the district court then substituted the United States as a defendant pursuant to 28 U.S.C. § 2679(d)(1).2

The court then dismissed Mr. Walkner's claim for lack of subject matter jurisdiction. The court reasoned that, although the FTCA acts as a waiver of sovereign immunity pursuant to 28 U.S.C. § 1346(b)(1),3 the exception to that general waiver set forth in 28 U.S.C. § 2680(c) was applicable to Mr. Walkner's cause of action.

Section 2680(c) excepts from the FTCA's waiver of sovereign immunity "[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 . . . ." 28 U.S.C. § 2680(c) (emphasis added). The Supreme Court has construed section 2680(c) broadly. In Kosak v. United States, 465 U.S. 848, 852-53 (1984), the Court rejected the argument that § 2680(c) exempts from the FTCA's waiver of sovereign immunity "only claims [] for damage caused by the detention itself" and that the FTCA waiver thus does not apply to the negligent destruction of property. Following Kosak, "[t]he courts have interpreted section 2680(c) to bar claims premised on essentially any injury to property sustained during its detention." United States v. Bein, 214 F.3d 408, 415 (3d Cir. 2000).

In the instant case, the district court reasoned that "prison officials allegedly confiscated paintings from [Mr. Walkner]. The confiscation was a detention of goods. . . . [Mr. Walkner's] claim for the allegedly lost paintings arises out of the detention of the goods." Rec. doc. 26, at 3-4 (Order, filed June 26, 2001).

We agree with the district court's analysis. In order for the exception set forth in § 2680(c) to apply in these circumstances, the court must find: (1) that the claim arose "in respect of . . . the detention of . . . goods, merchandise, or other property" and (2) that the detention was by a "law enforcement officer." Both elements are established here.

First, Mr. Walkner's claim arises "in respect of . . . the detention of . . . property," as that phrase has been construed by the Supreme Court. See Kosak, 465 U.S. at 852-53 (construing § 2680(c) to apply to the negligent destruction of property). Second, the prison officials whom Mr. Walkner alleges to have lost his paintings are "law enforcement officer[s]" under the statute. See Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (applying § 2680(c) to bar a claim against prison officials for mishandling property); United States v. 2,116 Boxes of Boned Beef, Weighing Approximately 154,121 Pounds, 726 F.2d 1481, 1490-91 (10th Cir. 1984) (applying § 2680(c) to property seized by the Department of Agriculture); see also Halverson v. United States, 972 F.2d 654, 656 (5th Cir. 1992) (per curiam) (holding that Immigration and Naturalization Service Border Patrol agents were law enforcement officers under § 2680(c)); Schlaebitz v. United States Dep't of Justice, 924 F.2d 193, 194-95 (11th Cir. 1991) (per cuiram) (applying § 2680(c) to a United States Marshall).

Accordingly, we AFFIRM the district court's dismissal of Mr. Walkner's claim for lack of subject matter jurisdiction.4

Entered for the Court,

Robert H. Henry

Circuit Judge