UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

JACKIE L. LUSTER,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

No. 02-3116

D.C. No. 01-CV-3242-KHV

(D. Kansas)

ORDER AND JUDGMENT(*)

Before KELLY, McKAY, and MURPHY, Circuit Judges.(2)

Plaintiff-Appellant Jackie L. Luster, a federal inmate appearing pro se,appeals the district court's dismissal of the civil action he brought against prisonofficials employed at the United States Penitentiary in Leavenworth, Kansas. Inhis complaint, Mr. Luster alleged that the officials, acting pursuant to Bureau ofPrisons policy, wrongfully retained postage stamps worth over $500.00 formerlyin his possession.

Mr. Luster originally filed this action erroneously relying upon 42 U.S.C.§ 1983. Recognizing this, the district court liberally construed his claim asarising instead under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 2671­2690. Accordingly, the district court substituted the United States as thesole defendant in place of the individual prison officials, citing 28 U.S.C. § 2672. R. Doc. 4, at 1. We note that the district court did not adhere to the statutoryprocedure for such substitution provided by 28 U.S.C. § 2679(d)(1) ("Uponcertification by the Attorney General that the defendant employee was actingwithin the scope of his office or employment . . . any civil action or proceedingcommenced upon such claim in a United States district court shall be deemed anaction against the United States . . . and the United States shall be substituted asthe party defendant."). Mr. Luster did not object on this ground below and hasnot raised this issue on appeal.

Construing the claim as arising under the FTCA, the district courtconcluded that Mr. Luster failed to show the United States had waived itssovereign immunity with respect to his claim because the exception contained in28 U.S.C. 2680(c) for claims arising from the detention of goods ormerchandise by law enforcement officers applied. Accordingly, the district courtdismissed Mr. Luster's action for lack of subject matter jurisdiction. Mr. Lusterthen brought this appeal, claiming as error the district court's failure to allow himto proceed under § 1983 and its failure to allow him to present evidence insupport of his claim. Aplt. Br. 3. Mr. Luster has not attempted to refute thereasoning of the district court relating to the applicability of 28 U.S.C. § 2680(c).

We review de novo a district court's dismissal for lack of subject matterjurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). U.S. West Inc. v. Tristani, 182F.3d 1202, 1206 (10th Cir. 1999). We conclude that Mr. Luster's assertion thatthe district court erred by failing to allow him to proceed under § 1983 is withoutmerit. It is beyond question that § 1983 has no applicability to alleged tortscommitted by federal officials acting under federal law. See, e.g., Wheeldin v.Wheeler, 373 U.S. 647, 650 (1963); Smith v. Kitchen, 156 F.3d 1025, 1028 (10thCir. 1997). We also conclude that Mr. Luster's assertion regarding the districtcourt's failure to allow him to present evidence is also without merit, as it fails torecognize that his claim was dismissed pursuant to Fed. R. Civ. P. 12(b)(1) forlack of subject matter jurisdiction. In support of his argument Mr. Luster citescases arising under § 1983 dealing with summary judgment dispositions. Thesedecisions have no bearing on this case at all.

Having rejected Mr. Luster's contentions on appeal, we also agree with thecourt's reasoning regarding the applicability of 28 U.S.C. § 2680(c) to thesefacts. R. Doc. 13 at 4-7.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. This courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

2. After examining the briefs and the appellaterecord, this three-judgepanel has determined unanimously that oral argument would not be of materialassistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10thCir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.