                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 25 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

FREDERICK KARL JOST,                              No. 07-16032

               Plaintiff - Appellant,             D.C. No. CV-05-01360-AWI

  v.
                                                  MEMORANDUM *
U.S. POSTAL SERVICE and U.S.
POSTMASTER,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Anthony W. Ishii, Chief Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN and CALLAHAN, Circuit Judges.

       Frederick Karl Jost, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his complaint under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) alleging that

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                                                                   07-16032
the United States Postal Service lost the contents of a package that Jost had mailed.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for failure to state a claim under 28 U.S.C. § 1915A, Resnick v. Hayes,

213 F.3d 443, 447 (9th Cir. 2000) and for an abuse of discretion its denial of leave

to amend, Halet v. Wend Inv. Co., 672 F.2d 1305, 1310 (9th Cir. 1982). We

affirm.

       The district court properly dismissed Jost’s action because the deprivation

Jost alleges — the loss of his mail — does not rise to a constitutional violation.

See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998) (“[T]he

Constitution does not guarantee due care on the part of state officials; liability for

negligently inflicted harm is categorically beneath the threshold of constitutional

due process.”); Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006) (Bivens action is

federal analog to civil rights suit against state officials).

       The district court properly dismissed any claim under the Federal Tort

Claims Act because Jost failed to exhaust his administrative remedies before filing

this action. See 28 U.S.C. §§ 2401(b), 2675(a); 39 C.F.R. § 912.5.




                                             2                                    07-16032
      The district court acted within its discretion by dismissing Jost’s complaint

without leave to amend. See Balser v. Dep’t of Justice, Off. of U.S. Trustee, 327

F.3d 903, 911 (9th Cir. 2003) (affirming denial of leave to amend complaint,

despite liberality generally afforded pro se litigants, because opening brief on

appeal set forth no legal basis for reversal).

      Jost’s remaining contentions are unpersuasive.

      AFFIRMED.




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