                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        August 25, 2005
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 TIMOTHY DOYLE YOUNG,

          Plaintiff - Appellant,
                                                       No. 05-1120
 v.                                             (D.C. No. 04-RB-589 (PAC))
                                                         (D. Colo.)
 UNITED STATES OF AMERICA,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Plaintiff-Appellant Timothy Doyle Young, a federal prisoner appearing pro

se, appeals from the district court’s dismissal of his Federal Torts Claim Act

(“FTCA”) claims seeking recovery for property losses he incurred while

incarcerated and various alleged constitutional violations. He also seeks

injunctive relief. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      Mr. Young is incarcerated at the United States Penitentiary in Florence,

Colorado. In October 2003, he was transferred to administrative detention and

the personal property in his cell was detained by prison officials. After being

released from administrative detention, Mr. Young’s property was returned to him

with several items missing. 1 Mr. Young initially filed an Administrative Tort

Claim, which was denied. He then filed a complaint in the district court under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), and 28 U.S.C. § 1331. R. Doc. 3 at 3. The district court held that

Mr. Young’s claim was not properly raised under Bivens and ordered him to file

an amended complaint. R. Doc. 7. In his amended complaint, Mr. Young

asserted jurisdiction under the FTCA again seeking recovery for the property loss

and alleging violations of the Fourth, Eighth, and Fourteenth Amendments based

on an alleged pattern of harassment by prison officials. R. Doc. 10.

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

for lack of subject matter jurisdiction. R. Doc. 23. Upon review, the magistrate

judge recommended the case be dismissed concluding: (1) 28 U.S.C. § 2680(c)

precludes property loss claims under the FTCA, and (2) Mr. Young had failed to

exhaust his administrative remedies regarding the additional constitutional claims.


      1
       The missing items were a prayer rug, three pairs of tube socks, a religious
book, Redwood snuff, Mrs. Dash seasoning, two coffee creamers, and a container
of clorpheniramine, with a total value of $53.25. R. Doc. 3 at 4A.

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The district court agreed, adopted the magistrate judge’s recommendation, and

dismissed the case with prejudice. R. Doc. 59.

      We review the district court’s dismissal of the property claim based on 28

U.S.C. § 2680(c) de novo. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1213

(10th Cir. 2003). The government’s tort liability under the FTCA is subject to the

exceptions listed in 28 U.S.C. § 2680. Section 2680(c) specifically provides that

the government is not liable for losses resulting from “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). In Steele we addressed identical

facts as those presented here and held that prison employees are law enforcement

officers for purposes of § 2680(c). 355 F.3d at 1213. Thus, the district court was

correct in dismissing the property loss claim for lack of subject matter

jurisdiction. Id.

      The district court dismissed the remaining claims based on Mr. Young’s

failure to exhaust administrative remedies. We review the district court’s finding

of failure to exhaust de novo. Fitzgerald v. Corrections Corp. of Am., 403 F.3d

1134, 1138 (10th Cir. 2005). The Prison Litigation Reform Act mandates that

prisoners challenging prison conditions under any federal law must exhaust

available administrative remedies before filing suit in federal district court. 42

U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). Where a prisoner


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fails to pursue his administrative remedies, the district court must dismiss the

claim. Steele, 355 F.3d at 1211. Mr. Young’s remaining claims assert

constitutional challenges based on an alleged pattern of harassment by prison

officials. However, he has failed to provide any evidence that he raised these

arguments in the administrative grievance process. See Fitzgerald, 403 F.3d at

1139 (“exhaustion [is] a pleading burden that falls on the plaintiff”). Mr. Young

asserts he raised these issues in his administrative tort grievance concerning the

property loss, but as the district court held, nothing in Mr. Young’s tort grievance

alerted the agency to the broader complaints he is now raising. Ross v. County of

Bernalillo, 365 F.3d 1181, 1188 (10th Cir. 2004).

      As stated above, the district court dismissed these claims with prejudice

under Fed. R. Civ. P. 12(b)(1). Failure to exhaust administrative remedies does

not deprive the district court of subject matter jurisdiction. Fitzgerald, 403 F.3d

at 1138-39. Rather, this deficiency is more akin to failure to state a claim upon

which relief can be granted and thus should generally be addressed under Fed. R.

Civ. P. 12(b)(6). Steele, 355 F.3d at 1212-13. Further, we have held that

dismissal for failure to exhaust should generally be without prejudice. Id.

Therefore, while we AFFIRM the district court’s dismissal, those claims being

dismissed for failure to exhaust administrative remedies are dismissed without




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prejudice. 2 Mr. Young’s motion to proceed on appeal without prepayment of fees

is GRANTED, and we remind him that he is obligated to make partial payments to

this court until the entire appellate filing fee is paid in accordance with 28 U.S.C.

§ 1915(b). All other pending motions are DENIED.



                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      2
          We express no opinion as to the timeliness of any subsequent filings.

                                          -5-
05-1120 Young v. United States
O’BRIEN, Circuit Judge, dissenting.

      I dissent. The law is clearly contrary to Young’s arguments. He failed in

the district court to state a claim upon which relief could be granted, even after

having been given an opportunity to amend his complaint. Young sued the United

States under the Federal Tort Claim Act (FTCA) for lost property and continuous

harassment of him (administrative detentions and cell searches) by corrections

officials. He also asserted claims against the United States for violation of his

Fourth, Eighth, and Fourteenth amendment rights. The magistrate judge

recommend dismissal of his FTCA property claims because 28 U.S.C. §2680(c)

bars them and dismissal of the FTCA harassments claims because his tort claim,

which made property claims, utterly failed to include harassment claims, a

jurisdictional prerequisite. His constitutional claims were dismissed because they

are not cognizable under the FTCA, F.D.I.C. v. Meyer, 510 U.S. 471, 477-78

(1994), and because the United States has not waived its sovereign immunity

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

U.S. 388 (1971). Young sought to again amend 1 to assert claims against

individual custodial officers. His request was denied as futile because he had not

exhausted his administrative remedies against those actors as required by the

Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The recommendations of the



      1
          The matter was before the court on Young’s amended complaint.
magistrate judge’s were adopted by the district court and the case was dismissed

with prejudice. The majority concludes, and I agree, that the legal analysis was

entirely correct. The majority points out that a dismissal for failure to exhaust

administrative remedies should be without prejudice, but that principle has not

been, and should not be, extended to unexhausted claims against non-parties.

      This is obviously a frivolous appeal. As such, dismissal is required. 28

U.S.C. § 1915(e)(2)(B)(ii). Not only is it frivolous, it is offensive. Young

occupied much time and effort in the district court pursuing claims for which

relief could not be granted, all of which involved property valued at less than

$55.00 and unexhausted confinement complaints—precisely the kind of minutia

that spurred Congress to enact remedial measures in an attempt, hereby frustrated,

to curb frivolous prisoner litigation. Young continues his abuse of the system; in

pursuing this appeal he merely chants his mantra of mistreatment without offering

any meaningful argument as to how the district court erred. This case cries out

for dismissal and imposition of a frivolous filing strike.

      Another, similar, issue compounds the error. The district court denied

leave to proceed on appeal in forma pauperis, concluding the appeal could not be

taken in good faith and stating in writing that Young has not shown the existence

of a reasoned, non-frivolous argument on the laws and facts. 28 U.S.C. §

1915(a)(3); Fed. R. App. P. 24. I agree with the district judge. Full payment of


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the filing fee should have been required before we addressed this appeal in any

fashion.




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