               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 08-1915

                      JOHN EDWARD SCHOMAKER,

                       Plaintiff, Appellant,

                                    v.

                      UNITED STATES, ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Paul J. Barbadoro,         U.S. District Judge]


                                 Before

                        Lynch, Chief Judge,
              Torruella and Boudin, Circuit Judges.



     John Edward Schomaker on brief pro se.
     Evan J. Roth, Special Attorney on brief for appellees.



                             June 9, 2009
          Per Curiam.    John Schomaker appeals pro se the district

court's grant of summary judgment to defendants, the United States,

Assistant United States Attorney Arnold H. Huftalen, and John and

Jane Doe property officers employed by the U.S. Attorney's Office

for the District of New Hampshire.        In the underlying complaint,

Schomaker asserted constitutional and state law tort claims under

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

U.S. 388 (1971), the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),

2671-2680, ("FTCA") and New Hampshire state law, arising from

defendants' failure to return, and their subsequent destruction of,

personal property seized in 1997 during the execution of a valid

search   warrant   in   connection     with   a   criminal   prosecution;

defendants conceded that Schomaker was entitled to the return of at

least some of the seized property at the conclusion of the criminal

proceedings against him and that they received but failed to act on

Schomaker's request for the return of that property. Our review of

the entry of summary judgment is de novo.         See Goodwin v. C.N.J.,

Inc., 436 F.3d 44, 49 (1st Cir. 2006).

          On appeal, Schomaker's primary arguments are that the

district court erred in determining the date his Fourth Amendment

claim accrued and in failing to address whether his due process

rights were violated based solely on lack of notice prior to the

destruction of his property.         He also appears to challenge the

district court's determination that, under the Westfall Act, 28


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U.S.C. § 2679(d), defendant Huftalen was entitled to immunity with

regard to the state law tort claims because he was acting within

the scope of his employment at all relevant times.                    See Aversa v.

United States, 99 F.3d 1200, 1207 (1st Cir. 1996).                         We have

carefully reviewed the record and the parties' submissions and,

substantially for the reasons stated in the district court's May

13, 2008, Memorandum and Order, we affirm.

                                       DISCUSSION

I. Accrual of Fourth Amendment Claim; Equitable Tolling

            In his complaint, Schomaker expressly asserts that he was

entitled to the return of his property upon the completion of the

criminal     proceedings         and    that    defendant   Huftalen      and    the

unidentified property officers violated his Fourth Amendment rights

by "ma[king] an un[c]onstitutional Property Seizure when they

exercised    dominion      and    control      over   Plaintiff's     property   and

unlawfully detained Plaintiff's property when they refused to take

the necessary steps, upon the repeated demands of Plaintiff, to

effect     the   release     of    Plaintiff's        property   to    Plaintiff's

Authorized Agents . . . ."              Since Schomaker does not contest the

validity of the original seizure of his property in 1997, the

district court's determination that the injury upon which this

claim is based is defendants' failure to release the property upon

Schomaker's "repeated demands" is unassailable. The district court

therefore correctly found that the claim accrued when Schomaker


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knew or had reason to know that the government's retention of the

property became wrongful--i.e., when defendant Huftalen received

and failed to respond to Schomaker's concededly rightful request to

release the property, on or about July 13, 1998.            Schomaker does

not dispute that his claim was subject to New Hampshire's three-

year general personal injury statute of limitations, see N.H. Rev.

Stat. Ann. § 508:4; Roman v. Townsend, 224 F.3d 24, 26-27, 29 (1st

Cir. 2000); accordingly, since his Fourth Amendment claim was not

filed until nearly nine years after the date of accrual, it was

properly deemed untimely.

           To the extent that Schomaker contends that equitable

tolling is warranted because, under the district court's analysis,

a constitutional claim based on the failure to return property or

the destruction of property might accrue and expire before a timely

request for the return of property is made, he fails to distinguish

between the separate triggering events that would cause each of

these claims to accrue.         Contrary to Schomaker's suggestion, none

of these claims could accrue without the claimant being aware or

having reason to be aware of the triggering event.           Thus, for the

reasons   stated     by   the    district   court,   Schomaker   failed   to

demonstrate   that    any   exceptional     circumstances   sufficient    to

warrant equitable tolling were present.              See Vistamar, Inc. v.

Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir. 2005).




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II. Fifth Amendment - Procedural Due Process

            Schomaker next argues that the district court erred in

failing to address whether his due process rights were violated

based solely on lack of notice prior to the destruction of his

property.     We agree that Schomaker failed to present evidence

sufficient to support an inference that defendants' retention of

the   property,    their     failure    to    safeguard    it    or   the   ultimate

destruction of the property was the result of intentional or

reckless conduct.        The district court correctly determined that

negligent conduct resulting in an unintended loss of property was

insufficient      to   support    a   due    process    claim,    see    Daniels   v.

Williams, 474 U.S. 327, 328 (1986), and, "where a government

official is merely negligent in causing [an] injury, no procedure

for   compensation      is   constitutionally      required."           Davidson   v.

Cannon, 474 U.S. 344, 347 (1986).

III. Immunity Under the Westfall Act

            Although Schomaker purports to challenge the district

court's grant of "qualified immunity" to defendant Huftalen, since

the district court did not reach that issue, it appears that

Schomaker's    argument      is   directed     instead    toward      the   district

court's determination that Huftalen was entitled to immunity with

regard to the state law tort claims because he was "acting within

the scope of his office or employment."                28 U.S.C. § 2679(b)(1).




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          Schomaker argues on appeal, as he did in the district

court, that defendant Huftalen was not acting within the scope of

his employment because his conduct--in particular, his failure to

respond to Schomaker's requests for the return of his property and

his failure to safeguard or keep adequate records concerning

Schomaker's    property-violated      standards   of    professional

responsibility, rules of court and state law.     However, Schomaker

failed to present any evidence that would suggest that any of

defendant Huftalen's acts and omissions with respect to Schomaker's

property rose above the level of negligence, or that he acted with

any motive unrelated to his work.   For the reasons set forth by the

district court, we agree that the record is insufficient to support

an inference that defendant Huftalen acted outside the scope of his

employment.   The district court therefore properly substituted the

United States as the defendant with respect to Schomaker's state

law claims.   See 28 U.S.C. § 2679(d)(1).

IV. Sovereign Immunity

          Although the district court did not address the issue,

the government argued that Schomaker's state law claims were barred

because they fell within one of the enumerated exceptions to the

FTCA's limited waiver of sovereign immunity, which exempts from the

coverage of the statute "[a]ny claim arising in respect of . . .

the detention of any goods, merchandise, or other property by any

officer of customs or excise or any other law-enforcement officer."


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28   U.S.C.    §   2680(c).   The   Supreme    Court   has   construed   this

exemption expansively to bar "'any claim arising out of' the

detention of goods, includ[ing] a claim resulting from negligent

handling or storage of detained property," Kosak v. United States,

465 U.S. 848, 854 (1984), and has held that the phrase "any other

law enforcement officer" should be construed broadly to apply to

all "law enforcement officers of whatever kind."               Ali v. Fed.

Bureau of Prisons, 128 S.Ct. 831, 836, 840-41 (2008).             Schomaker

argued that the exception was inapplicable because the employees of

the U.S. Attorney's Office who had custody of his property did not

qualify as "law enforcement officers."             We have not yet had

occasion to decide this issue and decline to reach it now because

we find that Schomaker's tort claims are barred for another reason.

V. Effect of "No Asset" Bankruptcy Discharge

              Defendants argued below that Schomaker's March 1998 "no

asset" bankruptcy discharge also barred him from asserting any

claim for damages with respect to the failure to return or the

destruction of the seized property.           Schomaker filed a Chapter 7

voluntary bankruptcy petition in October 1997 (while his criminal

case was pending), in which he claimed personal property, including

a computer and a camera, as exempt and also denied that anyone was

holding any property that belonged to him, stating that "Any

property I own has been taken as evidence by the U.S. Marshal as

evidence in a pending court case.             This includes my computer,


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printer, monitor, and camera.          It is unlikely that these objects

will be returned to me." Based on those representations, Schomaker

was granted a "no asset" discharge on March 3, 1998, about two

weeks after he was sentenced.

             Defendants maintain that the property for which Schomaker

now seeks compensation either was or should have been included in

the bankruptcy estate, and that this action therefore is subject to

dismissal based on judicial estoppel and/or lack of standing.              In

opposition to this argument, Schomaker argued that the seized

property was different than (and, apparently, more valuable than)

the equipment claimed exempt in the bankruptcy proceeding; he

asserts that the computer seized from his house was a "Packard Bell

486DX2" and that the computer claimed exempt was a "V-Tech" "Laser

128EX" that he kept at his parents' house.             He explains that, at

the time he filed the bankruptcy petition, he mistakenly believed

that   the   seized   property   was    subject   to   forfeiture,   and   he

therefore did not believe it qualified as an asset or that he was

required to disclose its value; he suggests that, since he stated

in his bankruptcy filings that the computer equipment had been

seized and was not available to him, his disclosure was adequate

and not intentionally misleading, and he should not now be barred

from bringing an action to recover for its loss.           This argument is

unavailing.




                                   -8-
           First, Schomaker's failure to distinguish between the

"computer" identified in the list of exempt property and that

referenced in the Interrogatory responses, and his use of the

singular "my computer" in those responses, suggests that the seized

computer and the computer claimed exempt were one and the same.                      If

that were the case, Schomaker would be estopped from seeking to

recover for the loss of that property in this case because, to the

extent that he now claims over $34,000 in damages resulting from

that loss, his position seems to be intentionally inconsistent with

his sworn statements in the bankruptcy proceeding that the property

was worth less than $1,000.           See Payless Wholesale Distributors,

Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir.

1993)   (former       debtor   was   judicially       estopped      from    asserting

monetary   claims      omitted   from     schedules     supporting         Chapter   11

petition); Oneida Motor Frieght, Inc. v. United Jersey Bank, 848

F.2d 414 (3d Cir. 1988) ("A long-standing tenet of bankruptcy law

requires   one    seeking      benefits    under      its   terms    to    satisfy    a

companion duty to schedule, for the benefit of creditors, all his

interests and property rights.");              Estel v. Bigelow Management,

Inc., 323 B.R. 918 (E.D. Tex. 2005) (former chapter 7 debtor was

judicially estopped from maintaining discrimination action because

he   failed      to     disclose      claims     in     bankruptcy         schedules;

alternatively, because the cause of action was property of his

bankruptcy    estate,      employee     lacked     standing    to    bring     suit);


                                        -9-
Chandler v. Samford Univ., 35 F. Supp.2d 861 (N.D. Ala. 1999)

(involving Chapter 13 case that was converted to a "no asset"

Chapter 7 one month after debtor filed discrimination suit she had

failed   to    disclose   to     the   bankruptcy   court;   court   held   that

debtor's representations that she had "no assets" were inconsistent

with her later assertion of claims against the defendant).

              However,    even    assuming     Schomaker's    explanation    is

sufficient to create an issue of fact as to whether the seized

computer referenced in the Interrogatory responses was different

and more valuable than the one claimed as exempt personal property,

and even if he mistakenly believed that the seized property was

subject to forfeiture and therefore did not constitute an asset,

since it is undisputed that the property was not in fact the

subject of a forfeiture proceeding, the property, or any cause of

action to recover it or compensation for its loss would have been

an asset of the bankruptcy estate held by the U.S. Trustee for the

benefit of the creditors; the fact that Schomaker mistakenly

omitted the property and its value from the assets listed in the

petition does not give him standing to recover for its loss.                 See

11 U.S.C. §§ 323, 521, 541.             See also Estel, 323 B.R. at 924.

Thus, whether Schomaker has taken an intentionally inconsistent

position with regard to the value of the seized property in this

action or failed to disclose its value in the bankruptcy proceeding

because he mistakenly believed it was subject to forfeiture, he is


                                        -10-
not entitled to seek compensation for its loss.             See Payless

Wholesale Distributors, Inc., 989 F.2d at 571; Estel, 323 B.R. 918.

                                CONCLUSION

          In sum, we conclude that Schomaker's Fourth Amendment

Bivens claim was properly dismissed as time-barred, his Fifth

Amendment Bivens claim was properly denied because he failed to

establish that the challenged conduct was sufficient to support a

constitutional   claim,   the   individual   defendants   were   properly

granted immunity from the state law tort claims under the Westfall

Act and the United States substituted as the sole defendant, and

the FTCA claims were properly dismissed either because they were

barred under 28 U.S.C. § 2680(c), because the individual claims

failed on the merits, or because Schomaker was estopped from

seeking substantial damages for the loss of property that either

had de minimis value or was improperly omitted from the list of

assets in his bankruptcy petition.        The judgment of the district

court is therefore affirmed. See 1st Cir. Loc. R. 27.0(c).




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