                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             May 14, 2008
                              No. 07-13547                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 06-00185-CV-RV-MD

JOSE I. MACIA,


                                                            Plaintiff-Appellant,

                                   versus

U.S. MARSHALS SERVICE,

                                                                    Defendant,

UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.

                        ________________________

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

                               (May 14, 2008)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Jose I. Macia (“Macia”), a federal prisoner proceeding pro se, appeals from

the district court’s denial of his post-judgment motion for reconsideration of an

order dismissing his case, or, alternatively, granting summary judgment for the

United States Marshals Service (the “Marshals”) on his claim under the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. Macia argues that

the district court erred in denying his motion for reconsideration of its grant of

summary judgment in favor of the government. The district court found that it

lacked subject matter jurisdiction over Macia’s complaint because the detention of

goods exception to the FTCA provided sovereign immunity to the government.1

Upon review of the parties’ briefs and the record, we find no reversible error, and

we AFFIRM.

                                     I. BACKGROUND

       In September 2005, Jose Macia filed a pro se complaint alleging that the

Marshals violated his rights under the FTCA. Macia claimed that the Marshals




       1
          Even though the court’s order purported to dismiss the case for lack of subject matter
jurisdiction through a grant of summary judgment to the government, we construe that order as a
dismissal under Federal Rule of Civil Procedure 12(b)(1). See Sheely v. MRI Radiology
Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007) (“We have repeatedly said that when a
district court disposes of a case on justiciability (mootness) grounds we will treat the district
court's determination as if it was ruling on a motion to dismiss for lack of subject matter
jurisdiction under [Rule] 12(b)(1), even if the district court mistakenly has labeled its ruling a
grant of summary judgment.”).

                                                2
failed to evacuate him from a county jail2 prior to Hurricane Ivan’s landfall on the

Florida gulf coast on 15 September 2004. During the post-hurricane evacuation of

the jail on 17 September 2004, Macia alleged that the Marshals did not allow him

to take any of his personal property. He argued that the Marshals were therefore

liable under the FTCA for the loss of his property caused by the damage to the jail.

       According to Macia, the Marshals advised him to file a claim for the loss of

his personal property, but then they refused to act on his claim or to respond to his

correspondence. In Macia’s opinion, the Marshals “decided to lose or abandon

[his] personal property at will.” R1-20, Exh. Fold. 1, Attachment, Complaint at ¶

4. Macia attached to his complaint: (1) a copy of the claim that he filed for the

loss of his personal property; (2) a copy of a response from the Bureau of Prisons

indicating that his claim was not properly filed with that office and was being

referred to the Marshals for final determination and disposition; and (3) copies of

letters that he sent to the Marshals requesting a response to his claim and, in some

cases, threatening litigation if the Marshals did not respond promptly. He sought

$500 in compensatory damages and interest, and punitive damages in an amount to

be determined by the court.



       2
        Macia asserted that he was in federal custody awaiting sentencing at the time Hurricane
Ivan made landfall, but was being housed in a Florida county jail. R1-20, Exh. Fold. 1, Attachment,
Complaint at ¶ 1.

                                                3
      In May 2006, a magistrate judge entered an order directing the government

to respond to Macia’s complaint and include sworn statements of all persons

having knowledge and relevant information regarding the subject matter of the

complaint and copies of any written reports prepared as a result of investigation of

Macia’s allegations. The court prohibited Macia from replying to the

government’s special report unless directed to do so by the court, but noted that,

“at some point in the future upon notice of the court,” the government’s response

could be deemed a motion for summary judgment and, therefore, it “shall include

any other Rule 56 materials that the [government] wishes the court to consider.”

R1-26, Exh. Fold. 1, at ¶ 2, 4.

      In the special report, the government denied liability and argued that the

district court lacked subject matter jurisdiction over Macia’s complaint. While

acknowledging that the FTCA generally waived sovereign immunity for money

damages caused by the negligent or wrongful act or omission of any employee of

the United States acting within the scope of his or her employment, the government

maintained that two exceptions to the FTCA applied in this case to preclude the

district court from exercising subject matter jurisdiction over Macia’s present

lawsuit – (1) the discretionary function exception set forth at 28 U.S.C. § 2680(a),




                                          4
and (2) the detention of goods exception set forth at 28 U.S.C. § 2680(c)3.

       The government alternatively argued that Macia’s claims failed because: (1)

he could not demonstrate a prima facie case of negligence; (2) it could not be held

liable for an act of God; and (3) it could not be held liable for the acts or omissions

of the county jail employees due to their status as independent contractors. The

government provided declarations from three deputy marshals indicating that

employees at the Santa Rosa County Jail had assured them that the jail had been

constructed to withstand winds in excess of 150 miles per hour. According to the

declarations, the Marshals weighed the risks of moving the prisoners, staffing

needs, inconvenience to the prisoners, disruption of court calendars, relocation

expenses, and the assurances from the jail officials, against the risks associated

with leaving the prisoners at the jail. The Marshals concluded that relocating the

prisoners was both unnecessary and counterproductive. The government also

submitted a contract between the Marshals and Santa Rosa County, Florida, for the

housing, safekeeping, and subsistence of federal prisoners, and copies of the



       3
          The government indicated that it was responding “as if the special report were a motion
for summary judgment.” R1-35, Exh. Fold. 1, at 2. The government also requested that the
district court modify the caption of the lawsuit, pursuant to pursuant to Federal Rule of Civil
Procedure 17(a), to reflect that the real party in interest was the United States of America, not the
Marshals, since federal agencies could not be sued for monetary damages unless Congress
explicitly or implicitly denominated the agency as amenable to such suit. Id. The magistrate
judge found that the government was the only proper defendant in this case, R1-48, Exh. Fold. 1,
at 3, but the case caption was not amended.

                                                  5
Marshals’ detention policies.

      Shortly thereafter, the court notified Macia that he had thirty days in which

to respond and reiterated that, because the government’s report could be considered

a summary judgment motion, Macia had the burden of filing affidavits and other

materials if he wished to properly oppose the government’s report. The court

warned Macia that failure to do so could result in an adverse ruling. Macia

responded that the government’s special report failed to comply with the

magistrate judge’s May 2006 order because it provided false, self-serving, and

contradictory declarations from the Marshals, instead of discussing the facts of the

case, and it failed to disclose certain letters and reports “under the guise of an

attorney-client privilege.” R1-39, Exh. Fold. 1, at 2. Macia also pointed out that

the government contacted the Santa Rosa County Sheriff’s Office and the Bureau

of Prisons, but failed to mention these discussions in its special report and to

submit relevant documentation. Macia also attached two “referral of

responsibility” letters, which Macia attached to his response. Id. at 3. Macia

maintained that he established that the Marshals had a duty to meet certain

standards of conduct, as demonstrated by the Marshals’ Directives, Rules, and

Regulations, that the Marshals breached this duty, and that he was injured as a




                                            6
result.4 While Macia did mention the “discretionary function and elements to

maintain a negligence claim,” he did not address whether the discretionary function

or detention of goods exceptions to the FTCA applied and deprived the district

court of subject matter jurisdiction over his complaint. R1-39, Exh. Fold. 1, at 11.

       Macia attached a personal affidavit to his response attesting that he was not

allowed to transport personal property during the evacuation, and he did not

observe any other inmates being allowed to carry their personal property, including

legal documents. He also swore that the Marshals did not file a record of inventory

form or other prison forms, and he personally observed other inmates deliver tort

claims to the Bureau of Prisons and discuss their claims with prison officials

during a town hall meeting. Macia also filed a letter from the Marshals, which

stated that all of his non-contraband property would be returned after the

conclusion of his criminal proceedings. He attached a seized property and

evidence control form indicating that the Marshals seized some of his clothing, a

brush, gloves, boots, a laundry bag, running shoes, razor blades, paper bags, an


       4
          Macia also clarified that his complaint only raised one negligence claim under the
FTCA – that the Marshals acted negligently in ordering him not to pack or transport his personal
property during the evacuation of the jail following the hurricane, in direct violation of internal
directives. Macia maintained that the tort would have been prevented if the internal directives
were followed. Accordingly, to the extent that Macia’s complaint could have been construed
liberally to raise an additional claim that the Marshals were negligent failing to remove him from
the jail prior to the landfall of Hurricane Ivan, and that he was forced to endure the destruction of
the jail by the storm and to suffer inhumane conditions as a result, Macia abandoned such a
claim.

                                                  7
address book, cable modem, data cable, walkman, batteries, cell phones and

equipment, and money. Finally, Macia also submitted a copy of the Marshals’

Directives, which indicated that inmates were allowed to possess legal papers, and

if any “unallowable prisoner property” could not be given to the arresting agent,

then the Marshals could dispose of the property by mailing it to the prisoner’s next

of kin or placing it in a storage unit at the prisoner’s expense. Id. at Exh. 7. A

second provision stated that all property in the possession of a prisoner at the time

of his or her remand to the Marshals should be inventoried.

      The magistrate judge then notified Macia that the government’s report

would be considered a motion for summary judgment, and he gave Macia an

additional thirty days to respond. The magistrate judge also warned Macia that

summary judgment could be entered for the government if he failed to properly

oppose the motion. Macia then supplemented his response, rearguing many of the

issues he previously raised, but he did not submit any additional evidentiary

materials. On 22 January 2007, the magistrate judge entered a report

recommending that the government’s motion for summary judgment “be

GRANTED, and th[e] case be dismissed for lack of jurisdiction under the detention

of goods exception to the FTCA, or in the alternative that [the] motion for

summary judgment be granted based on [Macia’s] failure to make out a prima facie



                                           8
case.” R1-48, Exh. Fold. 1, at 13. The magistrate judge concluded that the

Supreme Court construed the detention of goods exception to the FTCA to apply to

“any claim arising out of the detention of the goods, including a claim resulting

from negligent handling or storage of detained property.” Id. at 8. The magistrate

judge then found that the detention of goods exception applied in this case, and

Macia’s claim should be dismissed for lack of jurisdiction since, “[t]aking the facts

in the light most favorable to [Macia], [] his property was under custodial control

of the U.S. Marshals and [] it was lost or destroyed due to the Marshals’ refusal to

allow him to take the property with him during the evacuation.” Id. at 9-10.

      In the alternative, the magistrate judge concluded that Macia failed to offer

any proof concerning the element of causation, since “nowhere [did] he allege that

he actually had the legal papers or the glasses in his possession, or available to

him, when the evacuation took place.” Id. at 12. According to the magistrate

judge, Macia failed to show “that the missing items survived [Hurricane] Ivan’s

assault on the jail such that he could have taken them with him, but for the

Marshals’ actions.” Id. The magistrate judge also recommended denying Macia’s

motion to show cause, reasoning that Macia appeared to misapprehend his

instructions in the May 2006 order, and explaining that the government was

required only to conduct an investigation reasonably necessary to defend itself in



                                           9
the action, and Macia failed to carry his burden of proof as the plaintiff.

      On 29 January 2007, while the magistrate judge’s recommendation was

pending before the district court, Macia filed a premature, self-styled “notice of

appeal” designating for review the magistrate judge’s January 2007 report. R1-50,

Exh. Fold. 1. The district court construed Macia’s notice of appeal as an objection

to the magistrate judge’s report. In an order entered on 23 February 2007, the

district court adopted the magistrate judge’s report, and dismissed the case “for

lack of jurisdiction under the detention of goods exception to the FTCA” and, in

the alternative, granted summary judgment to the government “based on [Macia’s]

failure to make out a prima facie case.” Doc. 51, Exh. Fold. 1. The district court

also entered a separate written judgment to this effect, and it refiled Macia’s earlier

notice of appeal the same day.

      We docketed Macia’s initial appeal but dismissed it sua sponte, holding that

we did not have appellate jurisdiction because the only document identified by

Macia in his notice of appeal – the magistrate judge’s report – was not a final

order. Macia never filed a timely notice of appeal from the district court’s 26

February 2007 order. Rather, the only document filed by Macia within sixty

calendar days from entry of the final order, other than the earlier notice of appeal

that was deemed to be untimely filed by this Court, was a letter to district court



                                           10
clerk, advising that he had not received any communication from the court

regarding his previously filed notice of appeal, and asking for advice “on how to

proceed with this matter.” R1-56, Exh. Fold. 1.

       In June 2007, Macia filed a belated objection to the magistrate judge’s

January 2007 report. The district court construed the objection as a post-judgment

motion for reconsideration, and, in an order dated 17 July 2007, denied it because

Macia did not raise any new grounds or arguments. R1-65 at 3. The district court

stated that “[t]he previous order adopting the Report and Recommendation [was]

hereby confirmed.” Id. Macia filed a notice of appeal and indicated that he was

appealing from the district court’s 17 July 2007 order. R1-67.

                                 II. DISCUSSION

      We review the district court’s order for abuse of discretion. Willard v.

Fairfield S. Co., 472 F.3d 817, 821 (11th Cir. 2006) (“This court reviews the

district court’s order on a Rule 60(b) motion for abuse of discretion.”). Although

both parties treat Macia’s notice of appeal as appealing from the underlying order

dismissing his complaint, or, alternatively, granting summary judgment for the

government, we note that the only district court order timely appealed from was the

order denying Macia’s motion for reconsideration under Rule 60(b). Therefore,

our jurisdiction is limited to reviewing the merits of this order denying



                                          11
reconsideration. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007)

(per curiam) (“Federal courts are obligated to inquire into subject-matter

jurisdiction sua sponte whenever it may be lacking.”) (quotation and citation

omitted). Pleadings filed by pro se litigants are entitled to a liberal construction.

See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam).

Nevertheless, courts should not act “as de facto counsel” for a pro se litigant or “re-

write an otherwise deficient pleading to sustain an action.” GJR Invs., Inc. v.

County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Indeed, where a

pro se litigant fails to challenge an issue on appeal, that issue will be deemed

abandoned, notwithstanding the litigant’s pro se status. Irwin v. Hawk, 40 F.3d

347, 347 n.1 (11th Cir. 1994) (per curiam). We will not consider issues raised for

the first time in an appellant’s reply brief. Al-Amin v. Smith, 511 F.3d 1317, 1336

n.38 (11th Cir. 2008).

      Macia argues that the district court erred in not requiring the government to

comply with the magistrate judge’s May 2006 order requiring the government to

ascertain the facts and circumstances surrounding the case, and to submit sworn

statements from all persons having knowledge and relevant information regarding

the subject matter of the complaint, as well as any reports prepared as a result of

investigation into his claims. He also asserts that he was deprived of due process



                                           12
because he was not able to prove his claim because the government did not comply

with this order. The government responds that Macia failed to challenge the

district court’s refusal to reconsider its holding that Macia’s complaint was due to

be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). The district court found that the detention of goods exception

to the FTCA applied and shielded the government from any liability, so the court

lacked subject matter jurisdiction over Macia’s complaint. In his briefs on appeal,

Macia never mentions or objects to the district court’s finding that it lacked subject

matter jurisdiction under the detention of goods exception to the FTCA, nor does

he object to the district court’s refusal to reconsider the merits of this finding.

      Upon review of the record, and upon consideration of the briefs of the

parties, we discern no reversible error. We conclude that Macia has abandoned any

claim that the district court abused its discretion in refusing to reconsider whether

his complaint was due to be dismissed for lack of subject matter jurisdiction under

the detention of good exception to the FTCA. Macia does not expressly mention

the court’s denial of his reconsideration motion, or the detention of goods

exception, the doctrine of sovereign immunity, or the FTCA, itself, in the statement

of the issues, the argument, or the conclusion sections of his pro se appellate brief,

Further, his appellate brief, even liberally construed, does not raise a challenge to



                                            13
that part of the district court’s order. To the extent that Macia’s single statement in

his reply brief that the district court’s “dismissal of the instant litigation as

frivolous was incorrect” can be construed liberally as an objection to the court’s

refusal to reconsider the merits of its finding that the detention of goods exception

to the FTCA applied, we decline to consider issues raised for the first time in a

reply brief.

       Accordingly, because Macia has abandoned any challenge to the district

court’s decision not to reconsider its holding that it lacked subject matter

jurisdiction over Macia’s complaint, we affirm the district court’s denial of his

motion for reconsideration.5 Because we affirm the district court on this ground,

we do not address the merits of the district court’s decision to deny reconsideration

of its alternative grant of summary judgment to the government on the merits. See,

e.g., United States v. Bass, 551 F.2d 962, 963 (5th Cir. 1977) (“As we affirm the

district court’s first finding, we need not consider the alternative holdings.”).




       5
         Even if Macia had not abandoned this claim, we would be forced to find that the district
court acted within its discretion in denying reconsideration of its earlier finding that dismissal
was appropriate. Taking the allegations of Macia’s complaint as true, the detention of goods
exception to the FTCA would apply to shield the Marshals from suit for monetary damages,
since Macia’s claim for damages arose from the Marshals’s detention of his personal property.
Schlaebitz v. U.S. Dep’t of Justice, 924 F.2d 193, 194-95 (11th Cir. 1991) (per curiam)
(concluding that U.S. Marshals are considered “other law enforcement officer[s]” for purposes
of the detention of goods exemption to the FTCA).


                                                14
                                III. CONCLUSION

      Macia appeals from the district court’s denial of his post-judgment motion

for reconsideration of an earlier order dismissing his case, or, alternatively,

granting summary judgment for the Marshals on his claim under the FTCA. On

appeal, Macia abandoned any challenge to the district court’s refusal to reconsider

whether his complaint was due to be dismissed for lack of subject matter

jurisdiction based on the detention of goods exception to the FCTA. Accordingly,

we affirm the district court’s denial of Macia’s motion for reconsideration.

AFFIRMED.




                                           15
