     Case: 18-50392      Document: 00514742176         Page: 1    Date Filed: 11/29/2018




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


                                      No. 18-50392                       FILED
                                                                 November 29, 2018
                                                                    Lyle W. Cayce
FRANCISCO PEREA,                                                         Clerk

                                                 Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; UNITED STATES BUREAU OF PRISONS,

                                                 Defendants - Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:18-CV-190


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Francisco Perea, federal prisoner # 12117-031, brought a claim under the
Federal Tort Claims Act (FTCA) against the United States and the United
States Bureau of Prisons for misplacing his possessions when he was
transferred between federal correctional institutions. The district court
dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C.
§ 2680(c). Perea now moves this court for leave to proceed in forma pauperis
(IFP) on appeal.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-50392     Document: 00514742176      Page: 2    Date Filed: 11/29/2018


                                  No. 18-50392

      To proceed IFP, Perea must demonstrate financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). In determining whether a nonfrivolous issue exists, this court’s inquiry
“is limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted). “[W]here the merits are
so intertwined with the certification decision as to constitute the same issue,”
we may deny the IFP motion and dismiss the appeal sua sponte if it is frivolous.
Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); see 5TH CIR. R. 42.2.
      The FTCA is a limited waiver of the Government’s sovereign immunity
and permits suits against it for certain tort claims. 28 U.S.C. § 2674. However,
exceptions in § 2680 preserve the Government’s sovereign immunity.              See
Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016). If an exception
applies, the FTCA claim is barred, and a federal court lacks subject matter
jurisdiction over the claim. See Campos v. United States, 888 F.3d 724, 730
(5th Cir. 2018), petition for cert. filed (Aug. 22, 2018) (No. 18-234).
      Subsection (c) of 28 U.S.C. § 2680 preserves the Government’s sovereign
immunity against “[a]ny claim arising in respect of . . . the detention of any
goods, merchandise, or other property by . . . any other law enforcement
officer.” The Supreme Court has interpreted this provision to cover prison staff
accused of negligently misplacing prisoners’ possessions. See Ali v. Fed. Bureau
of Prisons, 552 U.S. 214, 215–17 (2008). Accordingly, Perea has not
demonstrated that he will raise a nonfrivolous issue on appeal.
      Accordingly, Perea’s motion to proceed IFP is DENIED and the appeal is
DISMISSED as frivolous. Howard, 707 F.2d at 220; see Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2.




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