                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 18 2005
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


STEVEN G. TRAPP,

          Plaintiff-Appellant,

v.

UNITED STATES MARSHALS                                 No. 04-3405
SERVICE; DAVID DILBERTI,                            (District of Kansas)
Deputy Marshal; TROY SCHUSTER,                  (D.C. No. 03-CV-3335-JAR)
Deputy Marshal; DARREN S.
WEBER, Deputy Marshal; JOHN
DOES (3), USMS Task Force Officers;
CRAIG BEAM, Deputy Marshal,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Steven G. Trapp filed a civil rights complaint against the United States

Marshals Service (“USMS”) and several individual agents of the USMS. In his

complaint, Trapp alleged the defendants violated his Fourth and Fifth Amendment

rights in the course of effectuating his arrest. The district court dismissed

Trapp’s complaint for lack of jurisdiction, concluding that because the USMS was

a federal governmental entity and the individual defendants were sued in their

official capacities the suit was barred by sovereign immunity. Hatten v. White,

275 F.3d 1208, 1210 (10th Cir. 2002) (holding that a suit against a federal

employee in his official capacity is a suit against the United States and that such a

suit is barred by the doctrine of sovereign immunity). The district court further

concluded that Trapp could not proceed against the United States under the

waiver of sovereign immunity set out in the Federal Tort Claims Act (“FTCA”)

because Trapp had not exhausted his administrative remedies. McNeil v. United

States, 508 U.S. 106, 113 (1993) (holding that “the FTCA bars claimants from

bringing suit in federal court until they have exhausted their administrative

remedies”). Finally, the district court refused to consider the questions of

qualified immunity and quasi-judicial immunity, concluding that Trapp’s

complaint did not state a claim against the individual defendants in their


                                          -2-
individual capacities. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, 1 this

court affirms in part and reverses in part. The case is remanded to the district

court for further proceedings consistent with this opinion. Trapp’s request to

proceed in forma pauperis on appeal is granted.

      This court reviews de novo both a district court’s dismissal under Fed. R.

Civ. P. 12(b)(1) and its determinations on sovereign immunity. Ordinance 59

Ass’n v. United States Dep’t of Interior, 163 F.3d 1150, 1152 (10th Cir. 1998).

Applying that standard, this court affirms the dismissal for lack of subject matter

jurisdiction of Trapp’s claims against the USMS and the individual defendants in

their official capacity for those reasons set out by the district court. Furthermore,

because it was able to resolve the jurisdictional issues relating to Trapp’s claims

against the USMS and the individual defendants in their official capacities based

solely on the facts set out in Trapp’s pleadings, the district court did not err in

dismissing those claims without holding an evidentiary hearing. Holt v. United




      1
       The defendants assert that this court lacks jurisdiction over this appeal
because Trapp filed his notice of appeal one day late. In contrast to the
defendants’ assertions, however, Trapp’s notice of appeal was timely filed.
Judgment was entered dismissing the case on August 11, 2004. Trapp had sixty
days to file his notice of appeal. Fed. R. App. P. 4(a)(1)(B). Sixty days after
August 11, 2004, was Sunday, October 10, 2004. The next day, Monday, October
11, 2004, was Columbus Day. Accordingly, Trapp’s notice of appeal was due on
October 12, 2004. Fed. R. App. P. 36(a)(3), (4). Trapp’s notice of appeal filed
on October 12, 2004, was, therefore, timely.

                                          -3-
States, 46 F.3d 1000, 1003 (10th Cir. 1995); United States v. Gaines, 964 F.2d

972, 977 (10th Cir. 1992).

      The district court erred, however, in concluding that Trapp’s complaint did

not state a claim, pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), against the individual defendants in

their individual capacities. We recognize that in his form complaint, Trapp

checked the box indicating that he was suing each of the defendants in their

official capacities. Nevertheless, the context of the complaint and accompanying

documents indicate that Trapp was also raising claims against the individual

defendants in their individual capacities. In his Application to Proceed In Forma

Pauperis, filed at the same time as Trapp filed his complaint, Trapp indicated that

he was proceeding pursuant to either 42 U.S.C. § 1983 or Bivens. Furthermore, in

his prayer for relief, Trapp sought punitive damages. See Shabazz v. Coughlin,

852 F.2d 697, 700 (2d Cir. 1988) (holding that prayer for punitive damages shows

suit is against officer in individual capacity); Gregory v. Chehi, 843 F.2d 111,

119-20 (3d Cir. 1988) (same). None of the individual defendants suffered any

prejudice from Trapp’s failure to specifically indicate in his complaint that he was

bringing claims against them in their official capacities. In their motion to

dismiss, the individual defendants specifically raised the defenses of qualified

immunity and quasi-judicial immunity. See Shockley v. Jones, 823 F.2d 1068,


                                         -4-
1071 (7th Cir. 1987) (holding that by raising a qualified immunity defense, the

defendants demonstrated that they believed the suit was against them in their

individual capacities). In addition, in his response to the defendants’ motion to

dismiss, Trapp specifically argued that sovereign immunity did not dispose of his

claims because he was proceeding against the individual defendants pursuant to

Bivens. Because Trapp’s pro se complaint 2 set out claims against the individual

defendants in their individual capacities, the district court erred in dismissing the

entire suit for lack of subject matter on the ground of sovereign immunity. Id. at

1071-72.

      The district court’s dismissal of Trapp’s claims against the USMS and the

defendants in their official capacities for lack of jurisdiction is hereby

AFFIRMED. Its dismissal of the entire complaint for lack of jurisdiction is

REVERSED and the matter is REMANDED to the district court for further

proceedings consistent with this opinion.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge



      2
       Because he was proceeding pro se, the district court was obligated to read
Trapp’s complaint liberally. See Cummings v. Evans, 161 F.3d 610, 613 (10th
Cir. 1998).

                                          -5-
