by Dan Manville

Federal prisoners are no longer able to sue pursuant to the Federal Tort Claims Act (FTCA) for property that was negligently lost or destroyed by federal prison staff. In Ali v. Federal Bureau of Prisons, 128 S.Ct. 831 (2008), the United States Supreme Court held that federal prison staff are considered "law enforcement officials" and are entitled to sovereign immunity for such claims.1

Prisoner Ali was transferred from U.S. Penitentiary - Atlanta to U.S.P. Big Sandy. As part of the transfer process, Prisoner Ali turned two duffle bags of personal property over to the transferring staff so that the property could be inventoried, packed and shipped. Ali's bags arrived a few days after he did. Upon inspecting his property, he noticed that several items were missing; mostly his religious items, which he valued at $177. He exhausted FTCA's administrative process before filing a lawsuit claiming a violation of the FTCA, 28 U.S.C. §§ 1346, 2671 et seq. Both the district court and appellate court found that Ali's claim was barred by the exception in § 2680(c) for property claims against law enforcement staff. The Supreme Court accepted certiorari since the federal circuits were in disagreement as to the application of § 2680(c) to lose of property by prison staff.

The U.S. Government has immunity against claims unless that immunity has been waived by Congress. 28 U.S.C. § 2674. The FTCA constitutes a limited waiver of the sovereign immunity enjoyed by the United States.2 The FTCA allows a prisoner to file an action against the United States for negligent or intentional acts committed by federal prison staff during the course of their employment, so long as the administrative procedures outlined in its provisions have been exhausted.

The question before the Supreme Court was whether the prison staff who had lost the property "qualify as 'other law enforcement officer; within the meaning of [28 U.S.C.] § 2680(c).' "3If the staff was a law enforcement officer, then Ali's lawsuit had to be dismissed based upon sovereign immunity.4 If the staff was not included in the definition of law enforcement officer, then Ali's lawsuit could proceed.

In resolving the above question, the Court looked at the word "any" in the phrase "any other law enforcement officers." It found that "any" had been given an expansive reading in prior cases decided by the Court.5 The Court went on to state that if Congress had intended this provision not to apply to prison staff it could have written the law to state "any other law enforcement officer acting in a customs or excise capacity."6
The Supreme Court held that this language barred a federal prisoner's FTCA claim arising out of the loss of certain personal property.

However, federal prisoners are not without recourse when their property is lost or damaged through the negligence of prison staff and the value is less than $1,000. See 31 U.S.C. § 3723(a)(1), commonly referred to as the "Small Claim Act."7 The value of most property lost or destroyed by prison staff will be under this $1,000 claim limit so they should use this statute to seek compensation.8 If federal prisoners want to recover some money for their lost or destroyed property, their only recourse will be to file a claim within one year of the date that the property was lost or damaged.9 The procedures for filing such a claim is found at 28 C.F.R. § 543.31, et seq. It is the same procedure that must be followed for filing a FTCA claim. If prisoners don't accept the amount that is offered by the BOP to settle your claim, they cannot then file in federal court.10

Federal prisoners may have a Bivens11 claim against individual prison staff who intentionally lost or destroyed their property when the value of the property is over $1,000.12 In Hudson v. Palmer,13 the Court stated that if the prisoner is provided post-deprivation remedies for either negligent or intentional lost or destroyed property, the prisoner has received all the due process that is required. Prior to the Ali decision, courts had held that the federal government provided a meaningful post-deprivation remedy for loss of property pursuant to the Federal Tort Claims Act and this meant that most courts would dismiss a Bivens claim for lost property.14 Based upon Ali, the federal government provides no post-deprivation remedy for lost property over the value of $1,000. This should mean that BOP prisoners can bring a damage claim for intentional loss or destruction of property, with a value of over $1,000, pursuant to the Due Process Clause of the Fifth Amendment.15 

End Notes

1 128 S.Ct. 831 (2008).

2 United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948 (1976); Lombardi v. Whitman, 485 F.3d 73, 78 (2nd Cir. 2007).

3 28 U.S.C. § 2680(c) states: "Any claim arising in respect of the detention of any property by any other law enforcement officer  based on injury or loss  [of] property, while in the possession of any other law enforcement officer"

4 Ali, 128 S.Ct. at 835. 28 U.S.C. 1346(b)(1) provides:
... the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

5 Id. at 835-36.

6 Id. at 840 (emphasis in original).

7 Id. at 841 n.7.

8 Id. at 849 (Under 28 CFR § 543.31(a) (2007), the "owner of the damaged or lost property" first must file an FTCA claim with the Bureau of Prisons (BOP) regional office; the BOP, in turn, is authorized by statute to settle administrative claims for not more than $1,000, see 31 U.S.C. § 3723(a), which likely encompasses most claims brought by federal prisoners.)

9 31 U.S.C. § 3723(b).

10 Andrews v. U.S., 441 F.3d 220, 225 n. 4 (4th Cir. 2006), citing to Bazuaye v. U.S,. 83 F.3d 482, 486 n. 3 (D.C. Cir. 1996) (Section 3723 "provision did not allow suits against the government"). See also Parratt v. Taylor, 451 U.S. 527, 542-43, 101 S.Ct. 1908 (1981), where the Court held that where staff had lost the property of a prisoner he had received all the due process he was entitled since the state had an established procedure for recovery of a value for the lost property.

11 Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct 1999 (1971).

12 Hatten v. White, 275 F.3d 1208, 1210 (10th Cir, 2002) (An "inmate's ownership of property is a protected property interest that may not be infringed without due process". Since inmate was allowed to send property home that he could not possess, he was not denied due process.); Sellers v. U.S. 902 F.2d 598, 603-04 (7th Cir. 1990) (holding that property lost by individual federal prison staff stated a claim).

13 468 U.S. 517, 533, 104 S.Ct. 3194 (1984) (no due process claim for random and unauthorized deprivation of property, even if taking is intentional, so long as state provides inmate suitable post-deprivation remedy); Raditch v. United States, 929 F.2d 478, 481 (9th Cir.1991) ("Although Hudson involved § 1983 and the Fourteenth Amendment, the same due process principles apply to the federal government through the Fifth Amendment.").

In Hudson, the Court stated that if a prisoner is alleging the unauthorized, intentional deprivation of property, where the government offers compensation through statute, such as the FTCA, there is no due process violation. Remember, the decision in Ali states that the FTCA cannot be used to recover compensation for that lost or destroyed property.

14 See, e.g., Del Raine v. Williford, 32 F.3d 1024, 1046 (7th Cir. 1994).

15 Remember to exhaust your administrative remedies prior to filing the lawsuit.

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