                      UNITED STATES COURT OF APPEALS
Filed 10/29/96
                                   TENTH CIRCUIT


FRANKLIN WHITTAKER,                    )
                                       )
             Plaintiff-Appellant,      )
                                       )
      v.                               )                     No. 96-3192
                                       )                (D.C. No. 95-CV-3260)
(NFN) SCOTT, Warden, and WILLIAM JETER,)                     (D. Kansas)
Federal Correctional Officer,          )
                                       )
             Defendants-Appellees.     )



                             ORDER AND JUDGMENT*


Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.




      *
          This order and judgment is not binding precedent, except under the doctrines of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.
       Plaintiff Franklin Whittaker filed the instant suit on a civil rights action form

against the warden and an officer who served at the federal penitentiary in Leavenworth,

Kansas. The complaint alleged only that when plaintiff was sent to Springfield Medical

Center for medical reasons he left personal property in care of defendants and when he

returned some of the property was missing, citing 28 U.S.C. § 1313 (apparently intending

to cite 28 U.S.C. § 1331). Plaintiff’s application for leave to proceed in forma pauperis

recited that his property was lost “due to negligence of B.O.P. offices.”

       Defendants filed a motion to dismiss on various grounds: lack of subject matter

jurisdiction, lack of personal jurisdiction over the named defendants who had been

transferred to assignments in other states, insufficient service of process on defendants in

their individual capacities, and for failure to state a claim. Defendants’ motion and

accompanying brief contained a certificate of service showing copies had been mailed to

plaintiff at his current address in U.S.P. Allenwood, White Deer, Pennsylvania. When

plaintiff did not respond to the motion to dismiss, the district court granted the motion as

uncontested and dismissed the complaint pursuant to a local rule. Plaintiff filed a timely

notice of appeal.

       In his appellate brief plaintiff asserts that defendants and the court violated Fed. R.

Civ. P. 5(a) by failing to serve him with a copy of the motion to dismiss or to notify him

of the court’s intent to grant the motion. Thus, he claims he had no opportunity to

convince the court to refrain from dismissal. Plaintiff did not present his arguments to the


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district court by a motion for reconsideration or otherwise. On appeal defendants

correctly contend that normally we will not consider an issue not raised in the district

court. See Walker v. Mather, 959 F.2d 894, 896 (10th Cir. 1992). Further, they contend

that they did serve plaintiff with their motion and brief, as shown in the appended

certificates of service filed with the court. Defendants argue that we should not consider

a statement from an official at U.S.P. Allenwood that plaintiff received no “legal mail”

during the period in question because it was not presented to the district court. Defen-

dants further point out that the statement is irrelevant because legal mail refers only to

specially marked documents to be opened in the presence of the inmate to preserve

confidential communications between an inmate and his attorney. Defendants state that

the motion and brief were sent, properly, by ordinary mail, not legal mail, and hence

would not be treated as legal mail by the Allenwood authorities.

       We must affirm the dismissal for the reasons advanced by defendants. Not only

were none of the issues argued in plaintiff’s brief on appeal presented to the district court,

but defendants are correct that service of the defendants’ motion and brief need not be

marked as legal mail. See Fed. R. Civ. P. 5(b) (service on a party “shall be made . . . by

mailing it to the . . . party . . . . Service by mail is complete upon mailing.”). Defendants’

certificates of service, filed with the district court, are prima facie evidence that plaintiff

was served.




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       Further, even if we were to consider plaintiff’s complaint on the merits, we would

affirm the dismissal. On its face the complaint does not state a constitutional violation.

Under a most liberal reading it might state a claim for negligence cognizable under the

Federal Tort Claims Act--as plaintiff treated the matter when he filed his administrative

complaint. If viewed as a tort claim the complaint should have named the United States

as the proper defendant. 28 U.S.C. § 1346(b); Allen v. Veterans Admin., 749 F.2d 1386,

1387 (9th Cir. 1984). If viewed as a claim against the defendants in their individual

capacities the complaint fails for lack of personal service.

       AFFIRMED.

                                                  Entered for the Court

                                                  James K. Logan
                                                  Circuit Judge




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