Jost v. U.S. Postal Service , 412 F. App'x 957 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FREDERICK KARL JOST, No. 07-16032
Plaintiff - Appellant, D.C. No. CV-05-01360-AWI
v.
MEMORANDUM *
U.S. POSTAL SERVICE and U.S.
POSTMASTER,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN and CALLAHAN, Circuit Judges.
Frederick Karl Jost, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his complaint under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) alleging that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
07-16032
the United States Postal Service lost the contents of a package that Jost had mailed.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim under 28 U.S.C. § 1915A, Resnick v. Hayes,
213 F.3d 443, 447 (9th Cir. 2000) and for an abuse of discretion its denial of leave
to amend, Halet v. Wend Inv. Co., 672 F.2d 1305, 1310 (9th Cir. 1982). We
affirm.
The district court properly dismissed Jost’s action because the deprivation
Jost alleges — the loss of his mail — does not rise to a constitutional violation.
See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998) (“[T]he
Constitution does not guarantee due care on the part of state officials; liability for
negligently inflicted harm is categorically beneath the threshold of constitutional
due process.”); Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006) (Bivens action is
federal analog to civil rights suit against state officials).
The district court properly dismissed any claim under the Federal Tort
Claims Act because Jost failed to exhaust his administrative remedies before filing
this action. See 28 U.S.C. §§ 2401(b), 2675(a); 39 C.F.R. § 912.5.
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The district court acted within its discretion by dismissing Jost’s complaint
without leave to amend. See Balser v. Dep’t of Justice, Off. of U.S. Trustee, 327
F.3d 903, 911 (9th Cir. 2003) (affirming denial of leave to amend complaint,
despite liberality generally afforded pro se litigants, because opening brief on
appeal set forth no legal basis for reversal).
Jost’s remaining contentions are unpersuasive.
AFFIRMED.
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