                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 13 2002
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 JACKIE L. LUSTER,

          Plaintiff - Appellant,
                                                         No. 02-3116
 v.                                               D.C. No. 01-CV-3242-KHV
                                                         (D. Kansas)
 UNITED STATES OF AMERICA,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Plaintiff-Appellant Jackie L. Luster, a federal inmate appearing pro se,

appeals the district court's dismissal of the civil action he brought against prison

officials employed at the United States Penitentiary in Leavenworth, Kansas. In

his complaint, Mr. Luster alleged that the officials, acting pursuant to Bureau of

Prisons policy, wrongfully retained postage stamps worth over $500.00 formerly

      *
        This order and judgment is not binding precedent, except under the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 cause is therefore ordered submitted without oral argument.
in his possession.

      Mr. Luster originally filed this action erroneously relying upon 42 U.S.C.

§ 1983. Recognizing this, the district court liberally construed his claim as

arising instead under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

2671–2690. Accordingly, the district court substituted the United States as the

sole defendant in place of the individual prison officials, citing 28 U.S.C. § 2672.

R. Doc. 4, at 1. We note that the district court did not adhere to the statutory

procedure for such substitution provided by 28 U.S.C. § 2679(d)(1) (“Upon

certification by the Attorney General that the defendant employee was acting

within the scope of his office or employment . . . any civil action or proceeding

commenced upon such claim in a United States district court shall be deemed an

action against the United States . . . and the United States shall be substituted as

the party defendant.”). Mr. Luster did not object on this ground below and has

not raised this issue on appeal.

      Construing the claim as arising under the FTCA, the district court

concluded that Mr. Luster failed to show the United States had waived its

sovereign immunity with respect to his claim because the exception contained in

28 U.S.C. § 2680(c) for claims arising from the detention of goods or

merchandise by law enforcement officers applied. Accordingly, the district court

dismissed Mr. Luster’s action for lack of subject matter jurisdiction. Mr. Luster


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then brought this appeal, claiming as error the district court’s failure to allow him

to proceed under § 1983 and its failure to allow him to present evidence in

support of his claim. Aplt. Br. 3. Mr. Luster has not attempted to refute the

reasoning of the district court relating to the applicability of 28 U.S.C. § 2680(c).

      We review de novo a district court’s dismissal for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). U.S. West Inc. v. Tristani, 182

F.3d 1202, 1206 (10th Cir. 1999). We conclude that Mr. Luster’s assertion that

the district court erred by failing to allow him to proceed under § 1983 is without

merit. It is beyond question that § 1983 has no applicability to alleged torts

committed by federal officials acting under federal law. See, e.g., Wheeldin v.

Wheeler, 373 U.S. 647, 650 (1963); Smith v. Kitchen, 156 F.3d 1025, 1028 (10th

Cir. 1997). We also conclude that Mr. Luster’s assertion regarding the district

court’s failure to allow him to present evidence is also without merit, as it fails to

recognize that his claim was dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for

lack of subject matter jurisdiction. In support of his argument Mr. Luster cites

cases arising under § 1983 dealing with summary judgment dispositions. These

decisions have no bearing on this case at all.




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      Having rejected Mr. Luster’s contentions on appeal, we also agree with the

court’s reasoning regarding the applicability of 28 U.S.C. § 2680(c) to these facts.

R. Doc. 13 at 4-7.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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