     Case: 15-51012      Document: 00513900921         Page: 1    Date Filed: 03/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                    No. 15-51012                                     FILED
                                  Summary Calendar                               March 7, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
CARLOS GONZALEZ,

                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CV-263


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Carlos Gonzalez, federal prisoner # 82609-179, appeals the dismissal for
lack of subject-matter jurisdiction of his claims against the United States
under the Federal Tort Claims Act (FTCA). Gonzalez argues that his personal
property was mishandled, lost, or destroyed during a prison transfer as a result
of negligence by the Government. He asserts that his goods were not detained
and that the district court erroneously concluded that it lacked subject-matter


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-51012

jurisdiction over the claim. Gonzalez also argues that the district court erred
in dismissing his claims of abuse of process. He contends that the Government
ignored its policies and procedures and obstructed the grievance procedures by
delaying and destroying his mail. Finally, Gonzalez asserts that the prison
commissary violates federal racketeering and antitrust laws. He contends that
the prison commissary is a monopoly and a racket within the meaning of
federal criminal statutes.
      We review the district court’s dismissal of an action based on exceptions
to the FTCA de novo, accepting all of the plaintiff’s well-pleaded factual
allegations as true. Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir.
2001). The United States is immune from suit unless it has specifically waived
immunity. Jeanmarie, 242 F.3d at 602. The FTCA waives the sovereign
immunity of the United States for “claims arising out of torts committed by
federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008).
      However, this waiver of immunity does not apply to “[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).
Additionally, claims “arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter” are excluded from the waiver of
sovereign immunity. 28 U.S.C. § 2680(b). Gonzalez’s claims regarding the loss
of his property and tampering with his mail were properly dismissed for lack
of subject-matter jurisdiction because the claims were barred by sovereign
immunity. See § 2680(b), (c); See Ali, 552 U.S. at 218-28; Chapa v. U.S. Dep’t
of Justice, 339 F.3d 388, 390 (5th Cir. 2003).




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                                  No. 15-51012

      Gonzalez failed to administratively exhaust his abuse of process claims.
Thus, the district court properly dismissed these claims for lack of jurisdiction.
See 28 U.S.C. § 2675(a); Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995).
      Additionally, the Government’s waiver of sovereign immunity does not
extend to racketeering laws. McNeily v. United States, 6 F.3d 343, 350 (5th
Cir. 1993). Likewise, the Government is “not controlled by the antitrust laws”
and cannot be a defendant in an antitrust action.          U.S. Postal Service v.
Flamingo Industries Ltd., 540 U.S. 736, 744-48 (2004).
      Accordingly, the judgment of the district court is AFFIRMED.
Gonzalez’s motion for the appointment of counsel is DENIED.             All other
outstanding motions are DENIED.




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