                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 February 6, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 RICHARD C. BEALS,

               Plaintiff-Appellant,                      No. 11-4187
          v.                                             (D. of Utah)
 UNITED STATES DEPARTMENT                       (D.C. No. 10-CV-00787-CW)
 OF JUSTICE and UNITED STATES
 ATTORNEY’S OFFICE FOR THE
 DISTRICT OF UTAH,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


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


      Richard Beals appeals the district court’s dismissal of his tort claims

against the United States government. We have jurisdiction under 28 U.S.C.

§ 1291, and we construe Beals’s filings liberally because he is proceeding pro se.

See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). Because the


      *
         This order and judgment is not binding precedent except under the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.
      **
         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 cause is therefore ordered submitted without oral argument.
district court correctly dismissed Beals’s claims for lack of subject-matter

jurisdiction, we AFFIRM its judgment.



                                I. Background

      Beals’s claims relate to his 1988 trial and conviction for threatening a court

clerk. Beals alleges the government unlawfully withheld exculpatory evidence in

that proceeding, thereby violating his constitutional rights. He seeks money

damages under 42 U.S.C. § 1983 and the Federal Tort Claims Act (FTCA). Beals

previously raised similar claims in a 1993 suit, which the district court dismissed

with prejudice.

      The district court referred this case to a magistrate judge. The government

filed a motion to dismiss. The magistrate judge recommended the district court

dismiss the case for four reasons. See R., Vol. 1, Doc. 28, Report &

Recommendation, Beals v. DOJ, No. 2:10-cv-00787-CW (D. Utah, Aug. 10, 2011)

(Alba, M.J.). First, the court did not have jurisdiction because neither § 1983 nor

the FTCA provided an appropriate waiver of sovereign immunity. Second,

Beals’s § 1983 claim was time-barred under Utah’s four-year statute of

limitations for personal injury claims. Third, Beals’s § 1983 was barred by issue

preclusion because Beals brought the same claim in his 1993 suit. Fourth, Beals’s

FTCA claim was barred by claim preclusion because he could have brought it in

his 1993 suit, but did not.

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        The district court adopted the magistrate judge’s recommendation over

Beals’s objection and dismissed the case.



                                 II. Discussion

        The government argues it is immune from suit because Congress has not

waived sovereign immunity for either of Beals’s claims. “[T]he United States

cannot be sued without its consent.” Iowa Tribe of Kan. & Neb. v. Salazar, 607

F.3d 1225, 1232 (10th Cir. 2010) (quoting Merrill Lynch, Pierce, Fenner &

Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992)) (internal quotation mark

omitted). District courts “lack subject matter jurisdiction over a claim against the

United States for which sovereign immunity has not been waived.” Id. (citing

Normandy Apts., Ltd. v. HUD, 554 F.3d 1290, 1295 (10th Cir. 2009)). When the

United States does consent to be sued, “it can impose conditions on that consent,”

San Juan County v. United States, 503 F.3d 1163, 1175 (10th Cir. 2007), and “the

terms of its waiver of sovereign immunity define the extent of the court’s

jurisdiction,” Sw. Four Wheel Drive Ass’n. v. BLM, 363 F.3d 1069, 1071 (10th

Cir. 2004) (quoting United States v. Mottaz, 476 U.S. 834, 841 (1986)) (internal

quotation mark omitted). The plaintiff bears the burden of establishing the United

States’ waiver of sovereign immunity. Iowa Tribe of Kan. & Neb., 607 F.3d at

1232.



                                         -3-
      Here, Beals fails to show that § 1983 waives the government’s sovereign

immunity. As we have noted before, § 1983 “appli[es] only to actions by state

and local entities, not by the federal government.” Dry v. United States, 235 F.3d

1249, 1255 (10th Cir. 2000). In addition, § 1983 “does not apply to federal

officers acting under color of federal law.” Belhomme v. Widnall, 127 F.3d 1214,

1217 (10th Cir. 1997). Thus, we have no jurisdiction over Beals’s § 1983 claim.

      Beals likewise fails to demonstrate the government’s waiver of sovereign

immunity for his FTCA claim. The FTCA waives sovereign immunity only if

“the claimant shall have first presented the claim to the appropriate Federal

agency and his claim shall have been finally denied by the agency in writing and

sent by certified or registered mail.” 28 U.S.C. § 2675(a). In addition, “[a] tort

claim against the United States shall be forever barred unless it is presented in

writing to the appropriate Federal agency within two years after such claim

accrues or unless action is begun within six months . . . of notice of final denial

of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b); see

Franklin Sav. Corp. v. United States (In re Franklin Sav. Corp.), 385 F.3d 1279,

1287 (10th Cir. 2004). This timeliness condition is jurisdictional. Franklin

Savings Corp., 385 F.3d at 1287. Because Beals’s claim is not timely, the district

court had no jurisdiction over it.




                                          -4-
      Having determined that the district court lacked jurisdiction over all of

Beals’s claims, we need not address the alternate grounds for dismissal advanced

by the district court.



                               III. Conclusion

      For the reasons stated above, we AFFIRM the district court’s dismissal.

The government’s motion to dismiss is DISMISSED as moot.

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




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