UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEVIN TAYLOR,
Plaintiff-Appellant,

v.

LIEUTENANT BRIGHT; OFFICER LILLY;
                                                               No. 00-6676
OFFICER CLARK; OFFICER HUDSON;
OFFICER BROGGS; OFFICER MURPHY,
Associated Warden, individually
and in their official capacities,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-00-701-AW)

Submitted: July 20, 2000

Decided: August 14, 2000

Before WILLIAMS, WILKINS, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Kevin Taylor, Appellant Pro Se.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Kevin Taylor appeals from the district court's order dismissing his
Bivens1 claim with prejudice and dismissing without prejudice his
Federal Tort Claims Act ("FTCA") claim, 28 U.S.C.A. § 1346(b)
(West Supp. 2000). The district court concluded that Taylor had an
adequate post-deprivation remedy such that a Bivens action would not
lie, and that he failed to exhaust his administrative remedies and
therefore the court lacked jurisdiction over the FTCA claim. Because
we find that Taylor sufficiently alleged exhaustion of administrative
remedies and that it is not clear that Bivens relief is not available, we
vacate and remand for further proceedings.

Taylor, a federal inmate, alleged that correctional officers refused
to return to him his gold chain and a pair of tennis shoes. In his com-
plaint, he alleged that the property was lost, stolen, or destroyed. He
sought compensatory and punitive damages and "any relief deemed
appropriate."

In dismissing the FTCA claim, the district court determined that it
lacked jurisdiction over the claim because Taylor failed to submit
documentary proof that he exhausted his administrative remedies. In
his complaint, Taylor alleged, under penalty of perjury, that he pre-
sented his tort claim to the Mid-Atlantic Regional Office of the
Bureau of Prisons on February 9, 1999. He further alleged that as of
the date of the complaint, March 1, 2000, he had received no
response.

While exhaustion of administrative remedies is a jurisdictional pre-
requisite to the district court's jurisdiction, see Plyler v. United States,
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1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).

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900 F.2d 41, 42 (4th Cir. 1990), the exhaustion requirement is met if
the claimant has "first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency in
writing." 28 U.S.C. § 2675(a) (1994). Notably, "[t]he failure of an
agency to make final disposition of a claim within six months after
it is filed shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this section." Id.
Because Taylor's complaint alleged that he filed his tort claim in Feb-
ruary 1999, and received no response as of March 2000, we conclude
that Taylor had sufficiently demonstrated exhaustion of administra-
tive remedies. The district court's dismissal of the FTCA claim, there-
fore, was improper.

The negligent deprivation of property through the acts of a state or
federal employee does not constitute a deprivation of due process. See
Daniels v. Williams, 474 U.S. 327, 333-34 (1986). In addition, even
the intentional deprivation of property through the random and unau-
thorized acts of a state or federal employee does not constitute a
deprivation of due process, if "a meaningful postdeprivation remedy
for the loss is available." Hudson v. Palmer , 468 U.S. 517, 533
(1984). The district court summarily determined that Taylor had an
adequate post-deprivation remedy and therefore dismissed Taylor's
Bivens claim. Taylor might have an adequate post-deprivation remedy
under the FTCA if it is his contention that Defendants acted outside
their authority in stealing his property. See CHoPP Computer Corp.
v. United States, 5 F.3d 1344, 1347 (9th Cir. 1993) (holding that
claim for conversion was not beyond scope of FTCA); see also Balti-
more & Ohio R.R. v. Equitable Bank, N.A., 550 A.2d 407, 410 (Md.
Ct. Spec. App. 1988) (articulating elements of conversion under
Maryland law).

We have previously indicated, however, that the availability of
relief under the FTCA does not automatically foreclose a Bivens
action. See Dunbar Corp. v. Lindsey, 905 F.2d 754, 762 (4th Cir.
1990) (relying upon Carlson v. Green, 446 U.S. 14, 19-23 (1980)).
Under the FTCA, Taylor could only recover monetary damages. To
the extent that Taylor's complaint could be read as a request for
injunctive relief in the form of the return of his property, the FTCA
would not be an adequate remedy. Moreover, Taylor sought punitive
damages, which are available in a Bivens action, but are not available

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under the FTCA. We find that the district court's conclusion as to the
adequacy of Taylor's post-deprivation remedies was premature.

Finally, we note that the in forma pauperis statute requires that a
prisoner who brings a civil action or an appeal must pay the full filing
fee. See 28 U.S.C.A. § 1915(b)(1) (West 2000). Therefore, the district
court's decision to "not require [Taylor] to provide the fee or indi-
gency application" was incorrect. On remand, the district court should
resolve the fee issue prior to consideration of the merits of Taylor's
claims.2 See United States v. Jones, ___ F.3d ___, 2000 WL 709090
(4th Cir. May 31, 2000) (NO. 99-6398).

In conclusion, we vacate the district court's order and remand to
the district court for resolution of the fee issue, for further proceed-
ings on the FTCA claim, and for a determination of whether Taylor
alleged an intentional deprivation of his property, and if so, whether,
in fact, Taylor had an adequate post-deprivation remedy such that a
Bivens action would not lie. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

VACATED AND REMANDED
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2 Taylor filed an application to proceed in forma pauperis after the dis-
trict court's order was entered. The district court denied this motion as
moot. In light of our disposition of this appeal, the motion is reinstated.

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