Tootle v. Dunavan , 107 F. App'x 825 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 7 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
SAMUEL E. TOOTLE, II,
Plaintiff - Appellant,
v. No. 04-3077
(D.C. No. 03-CV-3216-GTV)
(D. Kansas)
ALLEN DUNAVAN, LTC, U.S. Army
Officer in Charge, U.S.D.B.
Command, Judge Advocate Office;
(FNU) ROEDER, LTC, U.S. Army
Officer in Charge of U.S.D.B.
Operations; (FNU) WILLIAMS, SGT.
MAJ., U.S. Army, U.S.D.B.
Operations Senior N.C.O.; (FNU)
DALEY, SGT. MAJ., U.S. Army,
U.S.D.B. Command; (FNU)
JEMMOTT, MSG. U.S. Army,
U.S.D.B. N.C.O.I.C Operations,
Defendants - Appellees.
ORDER AND JUDGMENT *
*
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)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before TACHA , Chief Judge, BRISCOE and HARTZ , Circuit Judges.
Plaintiff Samuel E. Tootle, II, appeals the dismissal of his Bivens claims,
see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), alleging that personnel at the United States Disciplinary
Barracks (USDB) in Fort Leavenworth, Kansas, withheld his files relating to
several court proceedings. Concluding that the district court properly dismissed
Plaintiff’s claims under the Feres doctrine, see Feres v. United States, 340 U.S.
135 (1950), we affirm.
Plaintiff filed this action while a prisoner at the USDB. His claims stem
from the withholding by military personnel of some of his legal files between
September 29, 2002, and October 16, 2002. The files were removed from
Plaintiff’s cell during the course of a move to a new facility. Plaintiff’s
complaint alleges that Defendants, military personnel involved in the operation of
the USDB, conspired to seize his legal files in order to deny him access to those
files, to destroy them, to prevent him from filing civil actions, and to gain a
tactical advantage by reviewing the contents of the files. According to the
complaint, Defendants were retaliating against him for filing civil actions and
pursuing habeas relief. Plaintiff sought damages and an injunction to stop
Defendants from seizing his files and from otherwise harassing him.
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Plaintiff later filed a motion for leave to supplement his original complaint
by adding new defendants and asserting claims under 42 U.S.C. §§ 1985-1986.
He asserted that Defendants had continued to retaliate against him. He also filed
a motion to file his pleadings electronically.
The district court granted Plaintiff’s motion for leave to file a supplemental
complaint, but held that Plaintiff’s claims for damages were barred by the Feres
doctrine, and that his claims for injunctive relief were moot because he had been
released from custody by the time the matter was decided. The court also denied
his motion for leave to file pleadings electronically. Plaintiff appeals the
dismissal of his damages claims and the denial of his request to file
electronically.
A dismissal under Feres is a dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Ricks v. Nickels,
295 F.3d 1124, 1127 (10th Cir. 2002). We therefore review the dismissal de
novo. Id. We are mindful that “[a]llegations in a pro se complaint are construed
liberally.” Id.In Feres the Supreme Court held that “the Government is not liable under
the Federal Tort Claims Act for injuries to servicemen where the injuries arise out
of or are in the course of activity incident to service.” 340 U.S. at 146. The
Supreme Court later extended this rule to Bivens actions in Chappell v. Wallace,
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462 U.S. 296, 305 (1983), holding that, “enlisted military personnel may not
maintain a suit to recover damages from a superior officer for alleged
constitutional violations.” The Feres doctrine has been expanded “to the point
where it now encompasses, at a minimum, all injuries suffered by military
personnel that are even remotely related to the individual’s status as a member of
the military.” Pringle v. United States, 208 F.3d 1220, 1223-24 (10th Cir. 2000)
(internal quotation marks and brackets omitted).
Plaintiff’s alleged injuries stem from his incarceration at the USDB, and
consequently arose out of his military service. See Ricks, 295 F.3d at 1132(“Ricks’ incarceration at the USDB, and thus his alleged injuries, stemmed from
his military relationship such that it is incident to his military service.” (internal
quotation marks omitted)). The incident-to-service test is therefore satisfied, and
Plaintiff’s claims must be dismissed under Feres.
As for Plaintiff’s contention that the district court improperly refused to
allow him to file his pleadings electronically, we hold that the district court did
not err in doing so. See D. Kan. Standing Order 03-1, Rule 5.4.2 (“A party to a
pending civil action who is not represented by an attorney may not register as a
Filing User in the Electronic Filing System unless permitted to do so by the
court.”).
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We AFFIRM the district court’s dismissal of Plaintiff’s claims.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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