                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 7 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 SAMUEL E. TOOTLE, II,

               Plaintiff - Appellant,
          v.                                            No. 04-3077
                                                (D.C. No. 03-CV-3216-GTV)
                                                        (D. Kansas)
 ALLEN DUNAVAN, LTC, U.S. Army
 Officer in Charge, U.S.D.B.
 Command, Judge Advocate Office;
 (FNU) ROEDER, LTC, U.S. Army
 Officer in Charge of U.S.D.B.
 Operations; (FNU) WILLIAMS, SGT.
 MAJ., U.S. Army, U.S.D.B.
 Operations Senior N.C.O.; (FNU)
 DALEY, SGT. MAJ., U.S. Army,
 U.S.D.B. Command; (FNU)
 JEMMOTT, MSG. U.S. Army,
 U.S.D.B. N.C.O.I.C Operations,

               Defendants - Appellees.


                            ORDER AND JUDGMENT          *




      *
        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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before TACHA , Chief Judge, BRISCOE and HARTZ , Circuit Judges.


      Plaintiff Samuel E. Tootle, II, appeals the dismissal of his Bivens claims,

see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), alleging that personnel at the United States Disciplinary

Barracks (USDB) in Fort Leavenworth, Kansas, withheld his files relating to

several court proceedings. Concluding that the district court properly dismissed

Plaintiff’s claims under the Feres doctrine, see Feres v. United States, 340 U.S.

135 (1950), we affirm.

      Plaintiff filed this action while a prisoner at the USDB. His claims stem

from the withholding by military personnel of some of his legal files between

September 29, 2002, and October 16, 2002. The files were removed from

Plaintiff’s cell during the course of a move to a new facility. Plaintiff’s

complaint alleges that Defendants, military personnel involved in the operation of

the USDB, conspired to seize his legal files in order to deny him access to those

files, to destroy them, to prevent him from filing civil actions, and to gain a

tactical advantage by reviewing the contents of the files. According to the

complaint, Defendants were retaliating against him for filing civil actions and

pursuing habeas relief. Plaintiff sought damages and an injunction to stop

Defendants from seizing his files and from otherwise harassing him.


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      Plaintiff later filed a motion for leave to supplement his original complaint

by adding new defendants and asserting claims under 42 U.S.C. §§ 1985-1986.

He asserted that Defendants had continued to retaliate against him. He also filed

a motion to file his pleadings electronically.

      The district court granted Plaintiff’s motion for leave to file a supplemental

complaint, but held that Plaintiff’s claims for damages were barred by the Feres

doctrine, and that his claims for injunctive relief were moot because he had been

released from custody by the time the matter was decided. The court also denied

his motion for leave to file pleadings electronically. Plaintiff appeals the

dismissal of his damages claims and the denial of his request to file

electronically.

      A dismissal under Feres is a dismissal for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Ricks v. Nickels,

295 F.3d 1124, 1127 (10th Cir. 2002). We therefore review the dismissal de

novo. Id. We are mindful that “[a]llegations in a pro se complaint are construed

liberally.” Id.

      In Feres the Supreme Court held that “the Government is not liable under

the Federal Tort Claims Act for injuries to servicemen where the injuries arise out

of or are in the course of activity incident to service.” 340 U.S. at 146. The

Supreme Court later extended this rule to Bivens actions in Chappell v. Wallace,


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462 U.S. 296, 305 (1983), holding that, “enlisted military personnel may not

maintain a suit to recover damages from a superior officer for alleged

constitutional violations.” The Feres doctrine has been expanded “to the point

where it now encompasses, at a minimum, all injuries suffered by military

personnel that are even remotely related to the individual’s status as a member of

the military.” Pringle v. United States, 208 F.3d 1220, 1223-24 (10th Cir. 2000)

(internal quotation marks and brackets omitted).

      Plaintiff’s alleged injuries stem from his incarceration at the USDB, and

consequently arose out of his military service. See Ricks, 295 F.3d at 1132

(“Ricks’ incarceration at the USDB, and thus his alleged injuries, stemmed from

his military relationship such that it is incident to his military service.” (internal

quotation marks omitted)). The incident-to-service test is therefore satisfied, and

Plaintiff’s claims must be dismissed under Feres.

      As for Plaintiff’s contention that the district court improperly refused to

allow him to file his pleadings electronically, we hold that the district court did

not err in doing so. See D. Kan. Standing Order 03-1, Rule 5.4.2 (“A party to a

pending civil action who is not represented by an attorney may not register as a

Filing User in the Electronic Filing System unless permitted to do so by the

court.”).




                                           -4-
We AFFIRM the district court’s dismissal of Plaintiff’s claims.

                               ENTERED FOR THE COURT


                               Harris L Hartz
                               Circuit Judge




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