                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 11, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MARKOS N. PAPPAS,

             Plaintiff - Appellant,

v.                                                        No. 14-6197
                                                   (D.C. No. 5:12-CV-00753-F)
UNITED STATES OF AMERICA,                                 (W.D. Okla.)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Markos Pappas, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his Federal Tort Claims Act (“FTCA”) lawsuit. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I

      Pappas asserted two FTCA claims related to his incarceration at the Federal

Correctional Institute in El Reno, Oklahoma. He alleged he suffered sleep

deprivation, torture, and physical and emotional injuries when Bureau of Prisons

(“BOP”) employees negligently and wrongfully impounded his mattress and bedding

for 30 days while he was in disciplinary segregation. The bedding was impounded

from 7 a.m. to 7 p.m. as a disciplinary punishment, though Pappas says he was also

denied a mattress on five nights. Additionally, he alleged BOP employees

negligently and wrongfully deprived him of the minimum out-of-cell exercise

required by federal regulations, resulting in physical and emotional injuries. He

averred that he repeatedly told BOP officials that staff were falsely stating he had

refused out-of-cell exercise, but they did not correct the problem.

      The government moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6).

After considering a series of reports and recommendations by a magistrate judge, the

district court granted the motion, ruling that it lacked subject matter jurisdiction

because Pappas failed to state a cognizable FTCA claim. It rejected the

government’s argument that the discretionary function exception to FTCA liability

barred Pappas’ claims because it concluded that BOP employees had no discretion:

they were required by federal regulations to furnish inmates with a mattress and

bedding at all times, prohibited from segregating an inmate without bedding unless

prescribed by a medical officer, and required to give inmates a minimum of five


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hours of out-of-cell exercise each week. See 28 C.F.R. § 541.21.1 But as to the

remaining central issue, the district court ruled that Pappas failed to point to any

analogous liability under Oklahoma tort law for a private individual under

circumstances like those alleged in his complaint. The district court also denied

Pappas’ Fed. R. Civ. P. 59(e) motion to alter or amend the judgment.

                                           II

      The FTCA waives the United States’ sovereign immunity for negligence by a

federal employee, but only to the same extent that a private person would be liable

under “the law of the place where the act or omission occurred.” 28 U.S.C.

§ 1346(b)(1). The United States can be held liable only “in the same manner and to

the same extent as a private individual under like circumstances.” § 2674.

      On appeal, Pappas argues the district court: (1) misapplied governing

authority in ruling that he failed to demonstrate analogous tort liability under

Oklahoma law; and (2) improperly dismissed his complaint without giving him an

opportunity to amend. Because Pappas proceeds pro se, we construe his filings

liberally. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).



      1
         As in effect through July 19, 2011, the applicable regulations stated: “Living
conditions may not be modified for the purpose of reinforcing acceptable behavior,”
id. § 541.21(b); “[s]taff shall furnish a mattress and bedding,” and “[a]n inmate may
not be segregated without . . . mattress, blankets and pillow, except when prescribed
by the medical officer for medical or psychiatric reasons,” id. § 541.21(c)(3); and
“[s]taff shall permit each segregated inmate no less than five hours exercise each
week,” id. § 541.21(c)(6).


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                                            A

      To state a cognizable claim under § 1346(b), the FTCA’s jurisdictional grant, a

complaint must allege the elements of that provision, including, as relevant to the

case at bar, that a private person would be liable to the plaintiff under the tort law of

the state where the act or omission occurred. FDIC v. Meyer, 510 U.S. 471, 477

(1994) (listing the six elements necessary under § 1346(b)). A claim that fails to

allege facts sufficient to meet this requirement must be dismissed for lack of subject

matter jurisdiction. Dorking Genetics v. United States, 76 F.3d 1261, 1264 (2d Cir.

1996). We review de novo the district court’s dismissal under Rule 12(b)(1) and

(b)(6). Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).

      Pappas argues that the district court’s decision conflicts with a Supreme Court

decision, United States v. Muniz, 374 U.S. 150 (1963). We disagree. In Muniz, the

Court held that prisoners may sue the United States under the FTCA for injuries

sustained in a federal prison caused by a federal employee’s negligence, but only to

the extent that a private individual under like circumstances would be liable under the

applicable state law. Id. at 153 (citing § 2674). The Muniz decision includes a

statement, on which Pappas focuses, that “the duty of care owed by the [BOP] to

federal prisoners is fixed by 18 U.S.C. § 4042, independent of an inconsistent state

law.” 347 U.S. at 164-65.

      Section 4042 requires that the BOP “provide for the safekeeping, care, and

subsistence” of persons in its custody. § 4042(a)(2). Pappas argues that, under


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Muniz, the duty of care in § 4042 trumps any inconsistent Oklahoma duty of care.

We need not address that question because the duty of care established by § 4042

does not appear inconsistent with Oklahoma law, which has noted the general rule

that custodial personnel “must exercise reasonable care and diligence to protect those

in [their] custody from known or reasonably perceivable dangers.” Seiler v. City of

Bethany, 746 P.2d 699, 700 (Okla. Ct. App. 1987) (citing Restatement (2d) of Torts,

§ 314A(4) (quotation omitted)).

      The district court dismissed Pappas’ complaint not because there is no

Oklahoma duty to use reasonable care with persons in custody, but because Pappas

did not demonstrate that conduct by a private person akin to that alleged in his

complaint would constitute a violation of the duty of care under Oklahoma law.

Pappas argues the district court failed to identify any Oklahoma state law that would

bar his claim, but the court was under no obligation to do so. As the party averring

jurisdiction, Pappas—the FTCA plaintiff—bears the burden of proof to establish that

the court possesses subject-matter jurisdiction based upon analogous Oklahoma

private liability. See Miller v. United States, 710 F.2d 656, 662 (10th Cir. 1983)

(holding plaintiff bears the burden of proving the district court has subject matter

jurisdiction to consider FTCA claim); see also Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994) (holding the law presumes that a cause lies outside

the limited jurisdiction of the federal courts and “the burden of establishing the

contrary rests upon the party asserting jurisdiction”).


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      Pappas asserts that the district court misapplied a Tenth Circuit decision,

Howard v. Zimmer, Inc., 718 F.3d 1209 (10th Cir. 2013) (“Howard II”). Following

the Oklahoma Supreme Court’s answer to our certified question, this court held in

Howard II that a private individual may maintain a claim for negligence per se in

Oklahoma against a medical-device manufacturer based on a violation of a Federal

Food, Drug, and Cosmetic Act regulation. 718 F.3d at 1210 (citing Howard v.

Zimmer, Inc., 299 P.3d 463, 467 (Okla. 2013) (“Howard I”)). In his reply brief,

Pappas argues the violation of the governing BOP regulations was sufficient under

Howard I to assert a “negligence per se” tort claim under Oklahoma law.

      The district court rejected Pappas’ reliance on Howard I because Pappas’

claims were not analogous to the medical-device claims and federal regulations at

issue in Howard I, nor did he demonstrate that a private person could maintain a

negligence per se claim in Oklahoma based on any Oklahoma regulations analogous

to § 541.21. This analysis is sound. It is axiomatic that “[t]he violation of a federal

regulation in and of itself is not a basis for liability under the FTCA.” Black Hills

Aviation, Inc. v. United States, 34 F.3d 968, 973 n.2 (10th Cir. 1994). “Even if

specific behavior is statutorily required of a federal employee, the government is not

liable under the FTCA unless state law recognizes a comparable liability for private

persons.” Ayala v. United States, 49 F.3d 607, 610 (10th Cir. 1995). Unlike

regulations applicable to medical devices, Bureau of Prisons regulations have no

application outside of the Bureau of Prisons. Further, Howard I did not broadly hold,


                                          -6-
as Pappas asserts, that all violations of a federal regulation are negligence per se in

Oklahoma. Rather, Howard I stated Oklahoma “allows” such a claim; set forth what

a plaintiff must show in order to claim that the violation of a particular regulation is

negligence per se; and then applied this test to a negligence claim which asserted that

an implant failed because the medical-device manufacturer left oily residue on the

implant in violation of federal regulations. 299 P.3d at 467-73. The district court

correctly concluded that Pappas failed to demonstrate that Oklahoma would impose

negligence-per-se liability on a private individual under “like circumstances” to those

described in Pappas’ complaint, as is jurisdictionally required by § 1346(b) and

§ 2674. We conclude that the district court did not err in dismissing Pappas’ FTCA

claims.

                                            B

      In his Rule 59(e) motion, Pappas asked the district court to set aside the

judgment so he could amend his complaint. Pappas repeatedly stated an intention to

amend his complaint in his pre-judgment pleadings, yet failed to seek timely leave to

amend before entry of judgment. After entry of judgment, Pappas could not file an

amended complaint unless the judgment was set aside or vacated. See Cooper v.

Shumway, 780 F.2d 27, 29 (10th Cir. 1985) (per curiam) (“[O]nce judgment is

entered the filing of an amended complaint is not permissible until judgment is set

aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).”). The district court

found no justification for a post-judgment amendment. We review that decision for


                                           -7-
an abuse of discretion. The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084,

1086-87 (10th Cir. 2005).

       We conclude that the district court did not abuse its discretion. Pappas seeks

an amendment to argue that the district court misapplied Oklahoma law and failed to

identify any Oklahoma law that would bar his claims. He also seeks to provide more

detailed arguments about the BOP’s duty of care under § 4042. As explained above,

all of these arguments are meritless. Thus, the district court did not abuse its

discretion in denying amendment on these grounds. Pappas also argues he should be

permitted to amend to assert the elements of an Oklahoma intentional-infliction-of-

emotional-distress claim because his allegations, singly or in combination, might

state such a claim under Oklahoma law. The district court acted within its discretion

to deny amendment because Pappas failed to identify how he would meet the

pleading requirements for such a claim.

                                            III

       We AFFIRM the district court’s judgment, GRANT Pappas’ motion to

proceed in forma pauperis, and remind him of his obligation to continue making

partial payments until the filing fee is paid in full.

                                                  Entered for the Court


                                                  Carlos F. Lucero
                                                  Circuit Judge




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