Ortloff, Robert S. v. United States ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2725
ROBERT S. ORTLOFF,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
ROBERT BARRIX, THOMAS JOHNSON, ET AL.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99 C 0829—Barbara B. Crabb, Chief Judge.
____________
ARGUED FEBRUARY 13, 2003—DECIDED JULY 11, 2003
____________
Before COFFEY, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Robert S. Ortloff, a federal pris-
oner, sued the United States and several prison officials
under the Federal Tort Claims Act, 28 U.S.C. § 2680, seek-
ing damages for the prison officials’ alleged destruction
of his personal property. Because some of the property
allegedly destroyed included materials related to several of
Ortloff’s pending lawsuits, he also alleged an access-to-
courts claim. The district court dismissed Ortloff’s access-to-
courts claim and, following a bench trial, ruled in favor of
the defendants on the merits of Ortloff’s FTCA claim. Ortloff
appeals. We affirm.
2 No. 01-2725
I.
During 1999, Robert Ortloff was serving a prison sen-
tence in the Federal Correctional Institute Oxford, in
Oxford, Wisconsin. On July 13 of that year, Officer Robert
Barrix, a prison guard at Oxford, searched Ortloff’s cell
and discovered 25 books of stamps, which exceeded the
number allowed under prison rules. After making this
find, Officer Barrix secured Ortloff’s cell and reported the
contraband to the operations lieutenant, who directed
Officer Barrix to immediately transfer Ortloff to the
Special Housing Unit (“SHU”). Ortloff was placed into
administrative detention in the SHU at 8:20 that evening.
After Ortloff’s transfer, Officer Barrix began inventory-
ing Ortloff’s property. He did this by placing Ortloff’s
personal property into cardboard boxes for transfer to the
SHU and by completing an “Inmate Personal Property
Form” for each box of materials. In packing the materials,
Officer Barrix removed items he believed were govern-
ment property, such as file folders and binders. He also
removed paper clips and binder clips. By the end of his
shift, Officer Barrix had inventoried and packed four
boxes of Ortloff’s property. Officer Thomas Johnson then
picked up where Officer Barrix left off, completing the
inventorying in a similar fashion. After the materials
were boxed, prison officials transferred a total of thirteen
boxes to the SHU.
Three days later, on July 16, 1999, Ortloff was released
from the SHU. The property officer on duty at that time
brought Ortloff ten boxes of non-contraband materials. The
parties dispute what happened at this point: the govern-
ment maintains that Ortloff declined to inventory his
property, whereas Ortloff states that the property officer
refused to allow him to review the materials. In any
event, Ortloff noted on the property form that he had not
No. 01-2725 3
reviewed the boxes and that prison officials had retained
two boxes. Prison officials claim that those two boxes
contained contraband and were mailed outside of the
prison. However, they did return one additional box to
Ortloff after he was released from the SHU.
Ortloff later filed suit against the United States and
several prison officials, claiming that the defendants
mishandled, damaged, and destroyed his personal prop-
erty, including lawsuit-related documents relating to
several pending habeas and civil rights actions he had
filed. In his complaint, he alleged the following claims:
the denial of his right of access-to-courts; intentional
infliction of emotional distress; a tort claim for the damage
or destruction of personal property; several miscellaneous
constitutional claims; and a claim based on the defendants’
alleged failure to follow administrative regulations. The
district court dismissed Ortloff’s access-to-courts claim
because he had failed to allege any specific or identifiable
harm to his pending lawsuits. As to Ortloff’s claim for
damage to his personal property, the district court con-
cluded that Ortloff had stated a claim under the FTCA, but
that the United States was the only proper defendant.
Accordingly, it substituted the United States on this claim
and dismissed the claim against the individual defendants.
The district court then declined to exercise supplemental
jurisdiction over Ortloff’s state law intentional infliction
of emotional distress claim, and also dismissed his ad-
ministrative claim and other miscellaneous constitutional
claims. After the district court dismissed Ortloff’s access-to-
courts claim, Ortloff filed a proposed amended complaint
which the district court construed as a motion to reconsider
its decision denying Ortloff leave to proceed in forma
pauperis on his access-to-courts claim. The district court
then reaffirmed its order dismissing Ortloff’s access-to-
courts claim.
4 No. 01-2725
This left only the FTCA claim against the United States.
The United States moved to dismiss that claim for lack of
jurisdiction, arguing that it had not waived sovereign
immunity for a damage claim based on the destruction of
goods by a prison official. The district court denied that
motion, concluding that Ortloff could state a claim under
the FTCA. The district court then held a bench trial on
Ortloff’s FTCA claim. Following trial, the district court
directed a verdict in favor of the United States under Fed. R.
Civ. P. 50. Ortloff appeals.
II.
On appeal, Ortloff challenges only two aspects of the
district court’s rulings. First, he argues that the district
court erred in dismissing his access-to-courts claim. Sec-
ond, he challenges the district court’s ruling on the merits
of his FTCA claim. We consider each argument in turn.
A. Access to Courts
Ortloff first challenges the district court’s dismissal of
his access-to-courts claim. The district court dismissed
this claim under Rule 12(b)(6) because Ortloff did not
allege any specific prejudice caused by the alleged destruc-
tion of his legal papers. We review the district court’s rul-
ing de novo. Del Raine v. Williford, 32 F.3d 1024, 1042 (7th
Cir. 1994).
Ortloff claims that the district court erred in dismissing
his access-to-courts claim because he alleged that the
defendants’ confiscation, seizure and destruction of his
legal materials severely prejudiced and adversely affected
his ability to prosecute at least three pending lawsuits. This,
Ortloff contends, is sufficient under the federal notice-
pleading standards of Rule 8(a).
No. 01-2725 5
Although Ortloff is correct that Rule 8(a) merely requires
a short, plain statement of the facts sufficient to put the
defendants on notice of the claim, the facts alleged must
nonetheless be sufficient to support a right to access-to-
courts claim. As this court explained in Martin v. Davies,
917 F.2d 336 (7th Cir. 1990), to state a right to access-to-
courts claim and avoid dismissal under Rule 12(b)(6), a
prisoner must make specific allegations as to the prej-
udice suffered because of the defendants’ alleged conduct.
Id. at 340. This is because a right to access-to-courts claim
exists only if a prisoner is unreasonably prevented from
presenting legitimate grievances to a court; various re-
sources, documents, and supplies merely provide the
instruments for reasonable access, and are not protected
in and of themselves. Id. Thus, when a plaintiff alleges
a denial of the right to access-to-courts, he must usually
plead specific prejudice to state a claim, such as by alleg-
ing that he missed court deadlines, failed to make
timely filings, or that legitimate claims were dismissed
because of the denial of reasonable access to legal
1
resources. Id. at 341. Ortloff’s general allegations of preju-
dice are insufficient under the precedent of this circuit.
Accordingly, the district court properly dismissed Ortloff’s
right to access-to-courts claim.
1
While a divided panel of this court in DeMallory v. Cullen, 855
F.2d 442, 449 (7th Cir. 1988), held that where a prisoner alleges
“a substantial and continuous limit on . . . access to legal ma-
terials or counsel, . . . the complaint carries an inherent allega-
tion of prejudice,” Ortloff did not allege such substantial and
continuous limitations. Therefore, the general rule of this
circuit, requiring the allegation of specific prejudice, controls. See
Martin, 917 F.2d at 340-41.
6 No. 01-2725
B. FTCA Claim
In addition to his right to access-to-courts claim, Ortloff’s
complaint also presented a claim for the alleged destruc-
tion of his property under the FTCA. The government
moved to dismiss this claim for lack of subject matter
jurisdiction, arguing that it had sovereign immunity from
suit and had not waived its immunity under the FTCA for
claims such as the one Ortloff was pursuing. The dis-
trict court rejected this argument, holding that it had
jurisdiction under the FTCA to consider Ortloff’s claim for
damages stemming from the alleged destruction of his
property. However, following a bench trial, the district
court entered judgment in the government’s favor on the
merits, concluding that Ortloff failed to establish that the
government had damaged or destroyed any of his prop-
erty. Ortloff appeals from this judgment.
On appeal, the government first reasserts its claim of
sovereign immunity from suit. The question of sovereign
immunity concerns the subject matter jurisdiction of
federal courts. LaBonte v. United States, 233 F.3d 1049,
1051 (7th Cir. 2000) (“The United States government may
be sued only where Congress has waived its sovereign
immunity and the existence of such waiver is a ‘prerequisite
for jurisdiction.’ ”). But see Clark v. United States, 326 F.3d
911, 913 (7th Cir. 2003) (questioning whether statutory
exceptions to liability under the FTCA concern a court’s
subject matter jurisdiction or the merits of the case). There-
fore, before considering the merits of Ortloff’s FTCA
claim on appeal, we must first determine whether the
district court properly exercised subject matter jurisdiction
over Ortloff’s claim.
“It is axiomatic that the United States as sovereign
cannot be sued without its consent.” Macklin v. United States,
300 F.3d 814, 820 (7th Cir. 2002). Thus, “the United States
No. 01-2725 7
government may be sued only where Congress has waived
its sovereign immunity . . . .” LaBonte, 233 F.3d at 1051.
Congress has waived its immunity, in part, by enacting
the FTCA in 1946. The FTCA “provides generally that the
United States shall be liable, to the same extent as a pri-
vate party, ‘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.’ ” Kosak
v. United States, 465 U.S. 848, 851-52 (1984) (quoting 28
U.S.C. § 1345(b)). This broad waiver of immunity, however,
is subject to multiple exceptions. See 28 U.S.C. § 2680(a)-(n).
In this case, the government relies on the exception to
its waiver of immunity contained in § 2680(c). Section
2680(c) provides that the government’s waiver of immunity
“shall not apply to . . . [a]ny claim arising in respect of the
assessment or collection of any tax or customs duty, or the
detention of any goods or merchandise by any offi-
cer of customs or excise or any other law enforcement
2
officers.” 28 U.S.C. § 2680(c). The government maintains
that because Ortloff’s claim “arise[s] in respect of the
detention of any goods,” namely his personal papers, “by
any other law enforcement officers,” to wit, the prison
guards, the exception of § 2680(c) applies and therefore the
3
government has not waived its sovereign immunity.
2
Congress amended Section 2680(c) on April 25, 2000. 28 U.S.C.
§ 2680(c). However, because Ortloff’s alleged claim arose prior
to this amendment and because the government does not
argue that this revision applies retroactively, we apply the stat-
ute in effect at the time of the alleged injury.
3
At oral argument we asked whether this was the position of
the local United States Attorney or the Attorney General,
(continued...)
8 No. 01-2725
Conversely, Ortloff contends that the “any other law
enforcement officers” language of that section only applies
when the “other law enforcement officers” are performing
or assisting in customs or excise functions. Because the
prison guards were not acting in those capacities, Ortloff
asserts that § 2680(c) is inapplicable.
“The Supreme Court has noted the ambiguity as to the
reach of the phrase ‘any other law enforcement officer,’
but has not determined whether the section 2680(c) ex-
emption is limited to the customs or excise context.” Formula
One Motors, Ltd. v. United States, 777 F.2d 822, 823 (2d Cir.
1985) (citing Kosak v. United States, 465 U.S. 848, 852 n.6
4 5
(1984)). We also have not yet resolved this issue. Several
other circuits, however, have addressed that issue, al-
3
(...continued)
and were informed that this position comes from Washington
and the Attorney General’s office.
4
In Kosak, in addition to noting this ambiguity, the Supreme
Court explained that in interpreting the meaning of “any other
law enforcement officer,” the principle that “sovereign im-
munity is the rule, and that legislative departures from the
rule should be strictly construed” is unhelpful when trying to
determine the scope of § 2680(c)’s exception. Kosak, 465 U.S.
at 854 n.9.
5
In United States v. 1500 Cases, More or Less, 249 F.2d 382 (7th
Cir. 1957), this court quoted §2680(c)’s exception, but did not
discuss the meaning of the “any other law enforcement officer”
language. Rather, in that case, we first noted that the plaintiff
had not presented an FTCA claim before the district court,
and then stated that even if they had, since the plaintiff never
filed a complaint seeking damages from the United States be-
fore filing suit, it could not maintain an action under the FTCA.
The reference to § 2680(c) was in passing, and not dispositive
of the case.
No. 01-2725 9
though there is a split in the circuits as to the scope of
§ 2680(c). The Fifth, Eight, Ninth, Tenth, Eleventh and
Federal Circuits have concluded that section 2680(c)’s “other
law enforcement officer” exemption applies to all law
enforcement officers, and not merely those performing
customs or excise functions. See United States v. 2,116
Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir. 1984)
(USDA agents included); Halverson v. United States, 972
F.2d 654, 655-56 (5th Cir. 1992) (border patrol agents in-
cluded); Schlaebitz v. United States Dep’t of Justice, 924 F.2d
193, 194 (11th Cir. 1991) (federal marshals included); Ysasi
v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988) (border
patrol agents included); United States v. Lockheed L-188
Aircraft, 656 F.2d 390, 397 (9th Cir. 1979) (FAA employees
included); Cheney v. United States, 972 F.2d 247, 248 (8th Cir.
1992) (drug task force agent protected). Conversely, the
Sixth Circuit and the D.C. Circuit have held that the “any
other law enforcement officer” exception is limited to
officers performing customs and excise functions. Bazuaye
v. United States, 83 F.3d 482, 486 (D.C. Cir. 1996) (noting
that § 2680(c) is limited to detention of goods by law
enforcement officers acting in tax or customs capacities);
Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994)
6
(accord). For the following reasons, today we join the
6
Some circuits have cited the Second Circuit’s decision in
Formula One Motors, Ltd. v. United States, 777 F.2d 822 (2d Cir.
1985), for the proposition that the “any other law enforcement
officer” language applies broadly to all law enforcement offi-
cers. See, e.g., United States v. Bein, 214 F.3d 408, 415 (3d Cir.
2000); Halverson v. United States, 972 F.2d 654, 656 (5th Cir.
1992). Conversely, the D.C. Circuit in Bazuaye v. United States,
83 F.3d 482, 484 (D.C. Cir. 1996), cited the Formula One decision
for the proposition that the Second Circuit suggested that they
(continued...)
10 No. 01-2725
Sixth Circuit and D.C. Circuit and hold that the excep-
tion found in § 2680(c) applies only to law enforcement
officers performing functions related to customs and
excise duties.
First, as the Supreme Court has explained, “[w]e do
not . . . construe statutory phrases in isolation; we read
statutes as a whole.” United States v. Morton, 467 U.S. 822,
828 (1984). Thus, we cannot parse the “any other law
enforcement officer” language from the remainder of
§ 2680(c), but rather that language must be read as part
of the totality of § 2680(c). In its entirety, as excerpted
above, § 2680(c) provides that the government’s waiver
of immunity shall not apply to “[a]ny claim arising in
respect of the assessment or collection of any tax or cus-
toms duty, or the detention of any goods or merchandise
by any officer of customs or excise or any other law en-
forcement officers.” 28 U.S.C. § 2680(c). In context, then,
the “any other law enforcement officer” language con-
veys a drastically different meaning than in isolation, as
the principles of ejusdem generis and noscitur a sociis dem-
onstrate. First, the principle of ejusdem generis, or “[o]f the
same kind, class, or nature,” Kurinsky, 33 F.3d at 596 n.2
(quoting Black’s Law Dictionary 464 (5th ed. 1979)), in-
structs “that where general words follow an enumera-
6
(...continued)
would limit the exception to law enforcement officers perform-
ing customs and excise functions. However, neither view is
correct, as the Second Circuit in Formula One expressly noted
that it was not reaching the issue because the DEA agents
who seized the automobile and its contents were acting suffi-
ciently like the function of customs agents to fall within the
scope of the exception of section 2680(c). Formula One, 777 F.2d
at 823-24.
No. 01-2725 11
tion of persons or things, by words of a particular and
specific meaning, such general words are not to be con-
strued in their widest extent, but are to be held as apply-
ing only to persons or things of the same general kind
or class as those specifically mentioned.” Kurinsky, 33 F.3d
at 597 n.2 (quoting Black’s Law Dictionary 464 (5th ed.
1979)). Under the principle of noscitur a sociis, or “[i]t is
known from its associates,” “the meaning of questionable
words or phrases in a statute may be ascertained by refer-
ence to the meaning of words or phrases associated with it.”
Id. at 597 n.3. These two principles of interpretation demon-
strate that the “any other law enforcement officer” lan-
guage must be read in light of § 2680(c)’s specific refer-
ence to claims arising out of the “collection of any tax or
customs duty,” and the class of officers identified, namely
“any officer of customs or excise.” Read in this light, the
“any other law enforcement officer” language thus means
any other law enforcement officers performing functions
related to customs or excise. Kurinsky, 33 F.3d at 596-97;
Bazuaye, 83 F.3d at 483-84.
Moreover, as the D.C. Circuit explained in Bazuaye,
limiting § 2680(c)’s exception to officers performing cus-
toms or excise functions is consistent with the rationale
underlying this exception. Specifically, “Congress carved
out the various § 2680 exceptions, at least in part, in order
to preclude tort suits against the government when other
‘adequate remedies’ were already available.’ ” Bazuaye, 83
F.3d at 484-85 (quoting Kosak, 465 U.S. at 858). In the case
of “[c]laims against federal officers carrying out the cus-
toms and tax laws [those claims] were among those for
which adequate remedies were already available.” Bazuaye,
83 F.3d at 485. However, “[t]he same [can] not be said for
plaintiffs injured by federal law enforcement officers act-
ing outside the authority of the customs and tax law.” Id.12 No. 01-2725
at 485. Thus, the rationale underlying § 2680(c)’s excep-
tion in the context of customs and excise functions does
not justify a reading which would extend the coverage of
the exception to all other law enforcement officers. In fact,
such a broad reading of § 2860(c)’s exception would swal-
low up Congress’ waiver of immunity, given the poten-
tial number of federal law enforcement officials in our
modern government’s alphabet soup—i.e., the DEA, EPA,
FBI, FDA, FTC, INS, OSHA, SEC, or USDA, to name a few.
Moreover, reading the exception so broadly that it
includes all other law enforcement officers would render
superfluous the “any officer of customs or excise” language,
since such officers would clearly be covered by the broad
“any other law enforcement officer” language. Bazuaye, 83
F.3d at 484. In interpreting statutes, courts “should dis-
favor interpretations of statutes that render language
superfluous . . . .” Connecticut Nat’l Bank v. Germain, 503
U.S. 249, 253 (1992). This added reason supports our
conclusion that the § 2680(c) exception only applies to law
enforcement officers performing custom or excise functions.
In response, the government points to the cases from
the majority of other circuits, all of which held that the
§ 2680(c) exception applies to all law enforcement officers
and not merely those performing customs or excise func-
tions. While the quantity of circuits favors the govern-
ment’s position, the quality of decisions favors Ortloff’s
view: The circuits that have held that § 2680(c) applies to
all other law enforcement officers have failed to consider
the “any other law enforcement officer” language in con-
text or in light of the principles of ejusdem generis and
noscitur a sociis. In fact, as Kurinsky recognized, those other
circuits merely conclusorily stated that § 2680(c) applies
to all law enforcement officers, without any analysis. See
Kurinsky, 33 F.3d at 598 (noting that “other appellate
No. 01-2725 13
courts that have addressed this issue have found that the
phrase ‘other law enforcement officer’ includes all types
of officers, whatever their duties, [but noting] . . . those
cases have not articulated a clear reason for this holding,
and have often stated their conclusions with little or
no analysis”). Conversely, the D.C. and Sixth Circuits in
Bazuaye v. United States, 83 F.3d 482 (D.C. Cir. 1996), and
Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994),
held that § 2680(c)’s exception applies solely to law en-
forcement officers performing customs or excise functions
7
only after conducting an in-depth analysis of the issue. We
find Kurinsky and Bazuaye’s analyses more persuasive
and adopt them today.
That, however, merely means that we have jurisdiction
over Ortloff’s FTCA claim. After exercising jurisdiction the
district court held a bench trial on his FTCA claim, at the
conclusion of which the court found that Ortloff failed
to present evidence to establish that any of his docu-
ments were damaged or destroyed. Based on this finding,
the district court granted the United States a directed
verdict under Rule 50. Ortloff appeals from this judg-
ment, arguing first that Rule 50 is inapplicable to a bench
trial, and that in any event the district court erred by failing
to make specific factual findings and in ruling in the gov-
ernment’s favor on his FTCA claim.
The government acknowledges Ortloff’s initial point: a
directed verdict pursuant to Rule 50(a) is appropriate
7
Because we conclude that § 2680(c) applies solely to law
enforcement officers acting in the customs or excise capacity,
we need not address Ortloff’s other contention that his legal
documents are not “goods” or “merchandise” within the mean-
ing of § 2680(c).
14 No. 01-2725
8
only in a jury trial. In a bench trial, the appropriate pro-
9
cedural mechanism for dismissal is Rule 52(c).
However, to the extent the district court relied on the
wrong procedural mechanism, that actually favored Ortloff,
because Rule 50(a) requires the court to consider the
evidence in the light most favorable to the plaintiff, Payne
v. Milwaukee County, 146 F.3d 430, 432 (7th Cir. 1998),
whereas Rule 52(c) allows the district court to weigh the
evidence to determine whether the plaintiff has proven
his case. Collins v. Ralston Purina Co., 147 F.3d 592, 599
(7th Cir. 1998). Thus, Ortloff was not prejudiced by the
district court’s procedural misstep.
Ortloff disagrees, arguing that because the district court
entered judgment pursuant to Rule 50(a)(1), the district
court failed to comply with Rule 52(c)’s requirement that
“[s]uch a judgment shall be supported by findings of fact
and conclusions of law as required by subdivision (a) of
8
Rule 50(a)(1) provides: “If during a trial by jury a party has
been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party
on that issue, the court may determine the issue against that
party and may grant a motion for judgment as a matter of law
against that party with respect to a claim or defense that can-
not under the controlling law be maintained or defeated
without a favorable finding on that issue.”
9
Rule 52(c) provides: “If during a trial without a jury a party has
been fully heard on an issue and the court finds against the
party on that issue, the court may enter judgment as a matter of
law against that party with respect to a claim or defense
that cannot under the controlling law be maintained or de-
feated without a favorable finding on that issue, or the court
may decline to render any judgment until the close of all the
evidence.”
No. 01-2725 15
this rule.” Subdivision (a) in turn requires: “In all actions
tried upon the facts without a jury or with an advisory jury,
the court shall find the facts specially and state separately
its conclusions of law thereon . . . .” Fed. R. Civ. P. 52(a).
However, Rule 52(a) allows for such findings to be made
orally, stating: “It will be sufficient if the findings of fact
and conclusions of law are stated orally and recorded in
open court following the close of the evidence or appear in
an opinion or memorandum of decision filed by the court.”
Moreover, as we explained in Denofre v. Transportation
Insurance Rating Bureau, 532 F.2d 43, 45 (7th Cir. 1976), Rule
52(a) merely “necessitates that the findings of fact on the
merits include as many of the subsidiary facts as are
necessary to disclose to the reviewing court the steps by
which the trial court reached its ultimate conclusion on
each factual issue.” In this case, the district court’s oral
ruling satisfied that requirement. Specifically, in ruling
against Ortloff, the district court explained its reasoning
in open court, stating in essence that the evidence pre-
sented was insufficient to establish that the prison offi-
cials had, in fact, destroyed or damaged any of Ortloff’s
property. See July 11, 2001, Transcript at 35-36 (“[T]here
is no indication . . . that you lost anything . . . I don’t
know what is missing. I don’t know whether anything
that is missing is of any value to you whatsoever in any way
that would allow me to find that you really had a loss.”)
Accordingly, the district court’s improper reliance on
Rule 50(a) is irrelevant, and we therefore affirm the judg-
10
ment in favor of the United States. See, e.g., Rothner v.
City of Chicago, 929 F.2d 297, 303 n.9 (7th Cir. 1991) (we may
affirm on any basis in the record).
10
Ortloff does not maintain on appeal that the district court’s
finding that the government did not destroy or damage his
property was clearly erroneous.
16 No. 01-2725
III.
The district court properly dismissed Ortloff’s right to
access-to-courts claim because he failed to allege any
specific prejudice to his pending litigation. The district
court also properly exercised jurisdiction over Ortloff’s
FTCA claim because § 2680(c) only excepts law enforce-
ment officers performing customs or excise functions,
and the prison guards in this case were not acting in those
capacities. But, on the merits, Ortloff’s FTCA claim fails
because he failed to satisfy his burden of proving that
the prison officials damaged or destroyed any of his prop-
erty. For these and the foregoing reasons, we AFFIRM.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-11-03