09-1473-pr
Adekoya v. Federal Bureau of Prisons

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY ORDER M UST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 29 th day of April, two thousand ten.

PRESENT:         REENA RAGGI,
                 PETER W. HALL,
                         Circuit Judges.*
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PRINCE A.Z.K. ADEKOYA II, ALSO KNOWN
AS PRINCE KAYODE ADEKOYA,
                         Plaintiff-Appellant,
                 v.                                                       No. 09-1473-pr

FEDERAL BUREAU OF PRISONS, UNITED
STATES OF AMERICA, MARVIN D. MORRISON,
FORMER WARDEN METROPOLITAN
CORRECTIONAL CENTER, LIEUTENANT ARIES,
METROPOLITAN CORRECTIONAL CENTER,
OFFICER CAMACHO, METROPOLITAN
CORRECTIONAL CENTER, OFFICER MENDEZ,
METROPOLITAN CORRECTIONAL CENTER,
              Defendants-Appellees.**


          *
         The Honorable Rosemary S. Pooler, who was a member of this panel, has removed
herself from hearing and consideration of this appeal. The remaining two panel members,
who agree on the disposition, decide this appeal pursuant to Local Rule 0.14(b).
          **
               The Clerk of Court is directed to amend the caption to read as shown.
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FOR PLAINTIFF-APPELLANT:                          Prince A.Z.K. Adekoya II, pro se, New York,
                                                  New York.

FOR DEFENDANTS-APPELLEES:                  Brandon H. Cowart, Assistant United States
                                           Attorney (Sarah S. Normand, Assistant United
                                           States Attorney, on the brief), for Preet Bharara,
                                           United States Attorney for the Southern District
                                           of New York, New York, New York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (Alvin K. Hellerstein, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the March 30, 2009 judgment of the district court is AFFIRMED.

       Prince A.Z.K. Adekoya II appeals pro se from an award of summary judgment in

favor of defendants on this civil action pursuant to the Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§ 1346(b), 2671 et seq., and Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), for damages sustained to personal property as a

result of flooding in a prison storeroom. Specifically, Adekoya challenges the district court’s

conclusions that (1) sovereign immunity barred his FTCA claim and (2) a failure to exhaust

administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42

U.S.C. § 1997e(a), precluded his Bivens claim. We assume the parties’ familiarity with the

underlying facts and the procedural history of the case, which we reference only as necessary

to explain our decision to affirm.

       Summary judgment is proper only if “there is no genuine issue as to any material fact



                                              2
and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

review an award of summary judgment de novo, construing the evidence in the light most

favorable to the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d

292, 300 (2d Cir. 2003). We also review de novo legal determinations such as the lack of

subject matter jurisdiction, see Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000),

and a failure to exhaust administrative remedies, see Johnson v. Rowley, 569 F.3d 40, 44 (2d

Cir. 2009).

       The FTCA effects a limited waiver of the federal government’s sovereign immunity

against civil actions for damages based on “loss of property . . . caused by the negligent or

wrongful act or omission of any employee of the Government while acting within the scope

of his office or employment.” 28 U.S.C. § 1346(b)(1). The waiver does not apply, however,

to “[a]ny claim arising in respect of . . . the detention of any goods, merchandise, or other

property by any officer of customs or excise or any other law enforcement officer,” except

where property is “seized for the purpose of forfeiture” and additional requirements, not

relevant here, are satisfied. Id. § 2680(c).

       We agree with the district court that sovereign immunity barred Adekoya’s claim

under the FTCA both because Adekoya sought to recover based on damage to property

during its detention by law enforcement officers, see Ali v. Fed. Bureau of Prisons, 552 U.S.

214, 227-28 (2008) (construing § 2680(c) broadly to cover all law enforcement officers), and

because his property was not seized for the purpose of forfeiture. We therefore affirm the



                                               3
grant of summary judgment on Adekoya’s FTCA claim.

       The PLRA’s requirement that prison inmates exhaust administrative remedies prior

to seeking relief in federal court, see 42 U.S.C. § 1997e(a), “applies to all inmate suits about

prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust may be excused

only where (1) administrative remedies were not in fact available; (2) prison officials have

forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3)

“special circumstances . . . justify the prisoner’s failure to comply with administrative

procedural requirements.” Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)

(internal quotation marks omitted).

       Upon de novo review, we agree with the district court that Adekoya’s Bivens claim

is barred by his failure to exhaust his administrative remedies. It is undisputed that Adekoya

never filed an administrative grievance regarding his allegedly damaged property, and his

filing of administrative tort claims is insufficient to satisfy the PLRA’s exhaustion

requirement. See Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007). Nor does the record

demonstrate that administrative remedies were unavailable to Adekoya, or that defendants’

actions support a finding of estoppel or “special circumstances” sufficient to excuse

Adekoya’s failure to exhaust. See Hemphill v. New York, 380 F.3d at 686.

       Even if we were to conclude, which we do not, that one of the three Hemphill

requirements was satisfied by prison officials’ reasonable recommendation, offered prior to

the Supreme Court’s decision in Ali, that Adekoya file an administrative tort claim, we would



                                               4
affirm the grant of summary judgment. Adekoya’s complaint states that damage to his

property resulted from “the negligence of the defendants that knowingly and intentionally

fail[ed] to repair, secure, or protect the storage room against flood.” To the extent Adekoya

alleges negligence, he fails to state a Fifth Amendment due process claim, see Daniels v.

Williams, 474 U.S. 327, 328 (1986), and his bare allegation of intentional misconduct is

insufficient to permit him to avoid summary judgment, see Davis v. New York, 316 F.3d 93,

100 (2d Cir. 2002).1

       We have considered Adekoya’s other arguments, and we conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




       1
         Although Adekoya’s brief in opposition to summary judgment also invokes the
Fourth and Eighth Amendments, he has alleged no injury cognizable under either provision.
See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984); Trammell v. Keane, 338 F.3d 155, 161
(2d Cir. 2003).

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