08-3725-pr
Adekoya v. Federal Bureau of Prisons



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMM ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUMM ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY
ORDER”). A PARTY CITING A SUMM ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18th day of June, two thousand ten.

PRESENT:
            RALPH K. WINTER,
            PETER W. HALL,
                   Circuit Judges,
            MIRIAM GOLDMAN CEDARBAUM,*
                   District Judge.
__________________________________________

Prince A.Z.K. Adekoya II, also known as
Prince Kayode Adekoya,

                  Plaintiff-Appellant,

                  v.                                                             08-3725-pr

Federal Bureau of Prisons, et al.,

            Defendants-Appellees.
__________________________________________

FOR APPELLANT:                         Prince A.Z.K. Adekoya II, pro se, New York, N.Y.

FOR APPELLEES:                         Brandon H. Cowart, Sarah S. Normand, Assistant United States

         *
         Miriam Goldman Cedarbaum, of the United States District Court for the Southern
District of New York, sitting by designation.
                               Attorneys for the Southern District of New York, New York, N.Y.

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

DECREED, that the judgment of the district court be and hereby is AFFIRMED.

       Appellant Prince A.Z.K. Adekoya II, proceeding pro se, appeals from a judgment of the

United States District Court for the Southern District of New York (Hellerstein, J.) granting

Appellees’ motion for summary judgment and dismissing Appellant’s amended complaint. We

assume the parties’ familiarity with the underlying facts and procedural history of the case.

       We review orders granting summary judgment de novo and determine whether the

district court properly concluded there was no genuine issue as to any material fact and the

moving party was entitled to judgment as a matter of law. See Cronin v. Aetna Life Ins. Co., 46

F.3d 196, 202-03 (2d Cir. 1995).

       To the extent Appellant raises claims in tort against the Bureau of Prisons (“BOP”) for

the negligent or intentional loss of his personal property, the Federal Tort Claims Act (“FTCA”)

provides a limited waiver of the federal government’s sovereign immunity and grants the federal

courts exclusive jurisdiction over “civil actions on claims against the United States, for money

damages, . . . for injury or loss of property . . . caused by the negligent or wrongful act or

omission of any employee of the Government while acting within the scope of his office or

employment . . . .” 28 U.S.C. § 1346(b)(1). However, the FTCA explicitly excludes from the

waiver of sovereign immunity 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,” unless the claim concerns property that was “seized for the purpose of forfeiture” and

the claim meets additional requirements not relevant here. 28 U.S.C. § 2680(c). Here


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Appellant’s claims sought recovery for personal property that was allegedly damaged or went

missing while being held in the custody of correctional officers. Dist. Ct. Doc. No. 41 at 4. For

that reason, as the district court ruled, there is no subject matter jurisdiction for relief under the

FTCA. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 227-28 (2008) (holding that claims

against correctional officers accused of mishandling property fall within the exception to the

United States’ waiver of sovereign immunity under the FTCA). In addition, Appellant failed to

exhaust his administrative remedies as required under the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a), nor does he fall within any of the exceptions to the PLRA’s

exhaustion requirement. See, e.g., Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)

(recognizing three exceptions to the exhaustion requirement under the PLRA).

        With respect to Appellant’s claims against the federal defendants in their individual

capacities, he fails to state a claim pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971). Appellant’s amended complaint asserted violations of his Fourth, Fifth, and Eighth

Amendment rights. Dist. Ct. Doc. No. 25 at 3a. As the district court observed, Appellant’s

amended complaint provided no basis for finding a violation of his Fourth Amendment rights.

Dist. Ct. Doc. No. 41 at 11. With respect to his Fifth Amendment claims, Appellant’s amended

complaint asserted that he was deprived of his property without due process of law. Dist. Ct.

Doc. No. 25 at 3-3a. However, although a plaintiff may bring a Bivens action against individual

federal agents who intentionally deprive him of his property without due process of law, a

negligent deprivation is insufficient and not actionable. See Polanco v. U.S. Drug Enforcement

Admin., 158 F.3d 647, 650 (2d Cir. 1998). Here, there is no support for the contention that the

Appellees intentionally deprived Appellant of his property because Appellant “specifically


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state[d that] the circumstances surrounding the alleged violations arose ‘out of negligence.’”

Dist. Ct. Doc. No. 41 at 12.

         Finally, to the extent Appellant argues that Appellees violated his Eighth Amendment

rights, he appears to ground this claim in allegations that he was denied “proper and adequate

shower and sleep,” and that “for no just reasons [he] started to experience dizziness.” Id. These

cursory allegations fail to establish that the Appellees were deliberately indifferent to a serious

medical need. See Farmer v. Brennan, 511 U.S. 825, 834-35 (1994).

         We have considered all of Appellant’s remaining arguments and find them to be without

merit.

         For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:

                                              Catherine O’Hagan Wolfe, Clerk




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