                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JAN 4 2002
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


EUGENE X. WILSON,

          Plaintiff-Appellant,
                                                        No. 01-3224
v.                                                  (District of Kansas)
                                                (D.C. No. 99-CV-3347-GTV)
UNITED STATES OF AMERICA,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this court 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.

      Proceeding pro se, Eugene X. Wilson appeals the district court’s dismissal

of the civil action he brought against four correctional officers employed at the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
United States Penitentiary in Leavenworth, Kansas. In his complaint, Wilson

alleged that the officers lost or misplaced forty-five books that were confiscated

from his prison cell. Wilson sought $750.00 in compensatory damages, the

alleged value of the lost books. After the Attorney General certified that the four

officers were acting within the scope of their employment, the officers moved to

substitute the United States as defendant pursuant to 28 U.S.C. § 2679(d)(1). The

district court granted the motion. The United States then moved to dismiss

Wilson’s complaint. The district court concluded that the United States had not

waived its sovereign immunity from the suit brought by Wilson and, thus, granted

the motion to dismiss. Wilson brought this appeal.

      In his appellate brief, Wilson raises both First Amendment and Religious

Freedom Restoration Act claims. Because these claims have been raised for the

first time on appeal, this court declines to address them. See Smith v. Sec’y of

N.M. Dep’t of Corr., 50 F.3d 801, 814 n.22 (10th Cir. 1995) (noting that in the

absence of extraordinary circumstances this court will not consider issues raised

for the first time on appeal).

      Wilson also argues that the district court erred when it construed his claims

as arising under the Federal Tort Claims Act (“FTCA”) and substituted the United

States as defendant. The district court concluded that it was required to substitute

the United States when the Attorney General certified that the correctional


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officers were acting within the scope of their employment. The court relied upon

28 U.S.C. § 2679(d)(1) which states,

      Upon certification by the Attorney General that the defendant
      employee was acting within the scope of his office or employment at
      the time of the incident out of which the claim arose, any civil action
      or proceeding commended upon such claim in the United States
      district court shall be deemed an action against the United States . . .
      and the United States shall be substituted as the party defendant.

(emphasis added). Wilson argues that his claims do not arise under the FTCA

and, therefore, 28 U.S.C. § 2679(d)(1) is inapplicable. Wilson contends that his

complaint states a viable Fifth Amendment due process claim. See Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389

(1971). Wilson’s argument is foreclosed by Supreme Court precedent. See

Daniels v. Williams, 474 U.S. 327, 328 (1986) (“[T]he Due Process Clause is

simply not implicated by a negligent act of an official causing unintended loss of

or injury to life, liberty or property.” (emphasis in original)). Even if Wilson’s

complaint could be construed as raising a claim that the correctional officers

intentionally deprived him of his property, he cannot state a constitutional

violation. The prison provided Wilson with an administrative remedy after the

loss of his books. Thus, he was afforded a meaningful post-deprivation remedy

for the alleged loss and cannot assert a constitutional claim. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984). Consequently, we conclude that the district



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court properly construed Wilson’s claims as arising under the FTCA and properly

substituted the United States as the defendant in this action.

      Wilson also challenges the district court’s conclusion that it lacked subject

matter jurisdiction to hear his claims because they are barred by sovereign

immunity. The court noted that the FTCA’s broad waiver of sovereign immunity

was limited in this case by an exception. That exception, found at 28 U.S.C. §

2680(c), provides that the waiver of sovereign immunity does not apply to any

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.” The district court concluded that (1) the confiscation of Wilson’s books

was a detention of goods and (2) the correctional officers were law enforcement

officers under § 2680(c). Having reviewed the arguments of the parties, we can

find no reversible error in the district court’s analysis and conclusion.

Consequently, we affirm the dismissal of Wilson’s complaint for substantially

those reasons stated by the district court.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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