                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2008

Gordon v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4961




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


             Nos. 06-4961, 06-4962, 06-4963, 06-4964, 06-4970, & 07-1624


                               MICHAEL LEE GORDON,
                                              Appellant

                                            v.

                            UNITED STATES OF AMERICA


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                   D.C. Civil Action Nos. 06-cv-00201, 06-cv-01338,
                  06-cv-01394, 06-cv-01509, 05-cv-02494, 06-cv-01477
                              (Honorable William J. Nealon)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 14, 2008

    Before: SCIRICA, Chief Judge, HARDIMAN and STAPLETON, Circuit Judges.

                                  (Filed: May 21, 2008)


                               OPINION OF THE COURT


PER CURIAM.

       Michael Lee Gordon appeals from several orders of the United States District

Court for the Middle District of Pennsylvania dismissing his civil actions against the

United States. For the foregoing reasons, we will grant the United States’ motion for

summary affirmance.
        Gordon, a former inmate at USP-Allenwood,1 filed six complaints in federal court

against officials there alleging violations of the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 2671, with regard to his personal property. In each of the cases, he alleged that,

at different times, Bureau of Prisons (“BOP”) personnel confiscated items that belonged

to him, and that they either failed to return the items, destroyed them, or gave them to

another inmate.2 In each of the cases, the Magistrate Judge recommended that the

complaint be dismissed for lack of subject matter jurisdiction because prison officials

were exempt from liability under the FTCA under 28 U.S.C. § 2680(c). That subsection

provides an exception to the government’s waiver of liability for “[a]ny claim arising in

respect of . . . the detention of goods, merchandise, or other property by any law

enforcement officer.” Id. The District Court agreed that it lacked subject matter

jurisdiction and it dismissed the lawsuits. Gordon filed these appeals.3




   1
       Gordon is presently confined at USP-Victorville in California.
   2
     Gordon’s complaints alleged that prison officials: confiscated 25 books of U.S.
stamps (M.D. Pa. Civ. No. 05-cv-2494); confiscated and destroyed 40 books of stamps
(M.D. Pa. Civ. No. 06-cv-0201); failed to complete requested copy work but charged his
account (M.D. Pa. Civ. No. 06-cv-1338); confiscated and destroyed his Star of David
medallion (M.D. Pa. Civ. No. 06-cv-1394); confiscated his law dictionary (M.D. Pa. Civ.
No. 06-cv-1477); and confiscated law books and gave them to another inmate (M.D. Pa.
06-cv-1509).
   3
     His appeals were consolidated and proceeded under C.A. No. 06-4961. We stayed
the appeals pending the outcome of a United States Supreme Court case dealing with the
exception from liability under 28 U.S.C. § 2680(c). See Ali v. Federal Bureau of Prisons,
– S. Ct.–, No. 06-9130, 2008 WL 169359 (Jan. 22, 2008).

                                              2
       Summary action is warranted when “no substantial question” is presented by the

appeal or when subsequent precedent warrants such action. See 3d Cir. LAR 27.4, I.O.P.

10.6. In this instance, summary affirmance is entirely appropriate because the United

States Supreme Court has recently held that the exception under § 2680(c) broadly

applies to all law enforcement officers. See Ali v. Federal Bureau of Prisons, – S. Ct.–,

No. 06-9130, 2008 WL 169359 (Jan. 22, 2008). Because Congress has not waived the

United States’ sovereign immunity for Gordon’s claims, the District Court properly

dismissed the lawsuits for lack of subject matter jurisdiction.

       We will grant the United States’ motion for summary affirmance. Gordon’s

motion to request pre-argument conference/mediation is denied.




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