                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                         OCT 19, 2006
                            No. 06-11468               THOMAS K. KAHN
                        Non-Argument Calendar              CLERK
                      ________________________

                  D. C. Docket No. 04-02986-CV-ODE-1

ABDUS-SHAHID M.S. ALI,


                                                       Plaintiff-Appellant,

                                   versus

FEDERAL BUREAU OF PRISONS,
MR. LIPPIN, Director of F.B.O.P,
WARDEN R. WILEY, U.S.P. Atlanta
MR. QUN'ANIS,
UNITED STATES,


                                                  Defendants-Appellees,

SOUTHEAST REGIONAL DIRECTOR,
                                                               Defendant.
                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                 (October 19, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant Abdus-Shahid M.S. Ali (“Ali”) appeals the district court’s

dismissal of his civil action brought pursuant to: (1) the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346 and 2671 et seq.; (2) the Religious Freedom

Restoration Act of 1995 (“RFRA”), 42 U.S.C. 2000bb et seq.; (3) the Religious

Land Use and Institutionalized Persons Act of 2000 (“RLUA”), 42 U.S.C. §

2000cc et seq.; (4) and Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 395, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971).

According to his complaint, Ali was transferred from a federal prison in Atlanta,

Georgia to a prison in Inez, Kentucky. Ali discovered upon his arrival in Kentucky

that several religious and personal items were missing from his belongings. After

the Federal Bureau of Prisons (“BOP”) rejected Ali’s administrative claim under

the FTCA, Ali filed suit in federal court. The district court dismissed Ali’s FTCA

claim for lack of subject matter jurisdiction because the United States did not



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waive sovereign immunity; the court dismissed Ali’s non-FTCA claims for lack of

exhaustion of administrative remedies. On appeal, Ali argues that the prison

officers who mishandled his belongings do not fall within an exception to the

waiver of sovereign immunity for FTCA claims. Ali also argues that the district

court erred in failing to convert the defendants’ motion to dismiss into a motion for

summary judgment.

      We review de novo the grant of a motion to dismiss for want of subject

matter jurisdiction. Milan Express, Inc. v. Averitt Express, Inc., 208 F.3d 975, 978

(11th Cir. 2000). In determining whether subject matter jurisdiction exists, a court

is permitted to investigate widely and has authority to look beyond the pleadings.

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (stating that a court

may review matters outside the pleadings, including testimony and affidavits).

      First, Ali argues on appeal the district court erred in dismissing his FTCA

claim because the court interpreted the exclusion to the FTCA found under 28

U.S.C. 2680(c) too broadly. The FTCA provides a waiver of the United States’

sovereign immunity to suits for damages attributed to its employees acting within

the scope of their employment, if said employees would be liable to the claimant

individually under the law of the situs. 28 U.S.C. § 1346(b)(1). Congress has

promulgated a number of exceptions to this waiver of sovereign immunity,



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including 28 U.S.C. § 2680(c), which exempts “[a]ny claim arising in respect of

the assessment or collection of any tax or customs duty, or the detention of any

goods , merchandise, or other property by any officer of customs or excise or any

other law enforcement officer.” (emphasis added).

      The United States Supreme Court has interpreted § 2680(c) broadly to cover

not only damages arising from the detention of goods or merchandise, but also

situations in which damages result from their negligent storage or handling. Kosak

v. United States, 465 U.S. 848, 854-59, 104 S. Ct. 1519, 1523-25, 79 L. Ed. 2d 860

(1984). The definition of “any other law-enforcement officer,” within the meaning

of § 2680(c) has been addressed by this circuit and sister circuit courts of appeal.

Schlaebitz v. United States Dep’t of Justice, 924 F.2d 193 (11th Cir. 1991). In

Schlaebitz, we held that U.S. Marshals, who were allegedly negligent in releasing a

parolee’s luggage to a third party, were “law-enforcement officers” within the

meaning of the FTCA exception in § 2680(c). 924 F.2d at 195; see also United

States v. Potes Ramirez, 260 F.3d 1310, 1315-16 (11th Cir. 2001).

      After reviewing the record, we conclude that the district court did not err in

finding that the officers who handled Ali’s property fall within the exception found

in 28 U.S.C. § 2680(c). See Schlaebitz, 924 F.2d at 194-95. Accordingly, the

district court did not err in dismissing Ali’s FTCA claim for want of subject matter



                                           4
jurisdiction under Fed. R. Civ. P. 12(b)(1).

        Next, Ali argues on appeal the district court should have turned the motion

to dismiss into a motion for summary judgment because the district court

considered materials that the defendant had submitted outside of the complaint.

Ali argues that had he been given notice of a motion for summary judgment, he

would have submitted additional affidavits or other evidence to counter the

defendants’ position.

        We review de novo a district court’s dismissal of a prisoner’s action for

failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).

Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000). Pursuant to

§ 1997e(a), “No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” A civil action with respect to “prison conditions” means

“any civil proceeding arising under Federal law with respect to the conditions of

confinement or the effects of actions by government officials on the lives of

persons confined in prison.” 18 U.S.C. § 3626(g)(2); Higginbottom, 223 F.3d at

1260.

        We have explained that “Congress now has mandated exhaustion in section



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1997e(a) and there is no longer discretion to waive the exhaustion requirement. . . .

[E]xhaustion is now a pre-condition to suit . . . .” Alexander v. Hawk, 159 F.3d

1321, 1325-26 (11th Cir. 1998) (emphasis added); see also Leal v. Georgia

Department of Corrections, 254 F.3d 1276, 1279 (11th Cir. 2001) (same). We

have also concluded that “[a] claim that fails to allege the requisite exhaustion of

remedies is tantamount to one that fails to state a claim upon which relief may be

granted.” Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998).

      Here, Ali failed to provide any information that would indicate he exhausted

the administrative remedies for his non-FTCA claims. Therefore, Ali’s claims are

“tantamount” to claims that “fail to state a claim upon which relief may be

granted” because Ali failed to “allege the requisite exhaustion of remedies” for his

non-FTCA claims. See Rivera, 144 F.3d at 731.

      Lastly, Ali alleged below and on appeal that he would have exhausted his

administrative remedies if prison officials had not misled him into thinking he only

needed to file one claim form in order to pursue both his FTCA and non-FTCA

claims. The district court recognized this argument and proceeded to find that

“[t]he statement made to Plaintiff about filing a standard-form 95 specifically

related to his FTCA claim.” The question arises of whether the district court’s

treatment of Ali’s statements were more akin to the analysis for a summary



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judgment motion. If so, we must decide whether the exhaustion requirements under

the PLRA can be waived if a prisoner is misled into believing he has satisfied

administrative procedures.

      On review of a motion to dismiss, we will accept all allegations in the

complaint as true and construe facts in a light most favorable to the plaintiff.

Harper v. Thomas, 988 F.2d 101, 103 (11th Cir. 1993). A complaint should not be

dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S.

41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Marsh v. Butler County, Ala.,

268 F.3d 1014, 1022 (11th Cir. 2001) (en banc).

      After reviewing the record, we conclude that it is unclear whether Ali was in

fact misled by prison officials which may excuse the exhaustion requirement.

Therefore, we vacate the district court’s dismissal of Ali’s non-FTCA claims and

remand this case for the district court to decide this issue in the first instance.

      AFFIRMED in part, VACATED in part, and REMANDED.




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