Allan Parmelee v. Peter Carlson

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No. 95-1901
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Allan Parmelee, *
*
Appellant, *
*
v. *
*
Peter Carlson, former Warden of *
the Federal Medical Center, *
Rochester, Minnesota; Fed. * Appeal from the United States
Medical Center; Stewart * District Court for the
Solmonson, former property * District of Minnesota.
officer at FMC; Daniel Braatz, *
Senior Officer at FMC, all * [UNPUBLISHED]
defendants are or were employees *
of the Federal Medical Center and*
are sued in their individual *
and official capacities, *
*
Appellees. *
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Submitted: December 18, 1995
Filed: February 15, 1996
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Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Allan Parmelee appeals from the district court's1 grant of
summary judgment in his action under the Federal Tort Claims Act,
28 U.S.C. §§ 2671-2680 (FTCA). We affirm.
1
The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota, adopting the report
and recommendation of the Honorable Jonathan G. Lebedoff, United
States Magistrate Judge for the District of Minnesota.
Parmelee, formerly an inmate at the Federal Medical Center in
Rochester, Minnesota, filed a suit alleging that defendant Officer
Braatz, in the course of conducting an inventory of Parmelee's
property, negligently disposed of an envelope containing a gold
necklace and six other stamped but unaddressed envelopes that
belonged to Parmelee. Parmelee also alleged that defendant
Officer Solmonson negligently failed to investigate the alleged
loss of property and that Warden Carlson had negligently trained
and supervised his staff. Parmelee later moved for appointment of
counsel.
Treating the FTCA claim as one against the United States, the
district court granted defendants' motion for summary judgment,
concluding that Parmelee had not created a factual dispute
regarding the elements of his negligence claim. On appeal,
Parmelee argues the merits of his FTCA claim, and also argues the
district court erred by refusing to appoint counsel and in granting
summary judgment without first giving him leave to amend his
complaint.
Having reviewed de novo the district court's judgment, we
affirm because 28 U.S.C. § 2680(c) bars Parmelee's suit.
See Cheney v. United States, 972 F.2d 247, 248 (8th Cir. 1992)
(per curiam) (holding § 2680 bars actions "arising out of the
detention of property by law enforcement officers"). Parmelee
argues that section 2680(c) does not apply because goods which the
government has lost are not subject to "detention." See Mora v.
United States, 955 F.2d 156, 160 (2nd Cir. 1992) (when government
loses goods § 2680(c) does not apply because lost goods are not in
the government's possession and hence "cannot be regarded as
``detained.'"). We disagree with Mora, because section 2680(c) bars
suits "arising in respect of . . . the detention of any goods" not
suits brought while the government detains goods. 28 U.S.C.
§ 2680(c) (emphasis added). In fact, this court's Cheney decision
applied section 2680(c) in a case where the government did not
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possess the property Cheney sought to recover. 972 F.2d at 248.
When Braatz inventoried Parmelee's personalty, he detained it.
Thus Parmelee's suit arises out of the detention of his property,
notwithstanding the subsequent alleged loss of property.
We also conclude the district court did not abuse its
discretion in denying Parmelee's motion for the appointment of
counsel, see Swope v. Cameron, No. 94-2473 slip op. at 3, 1996 WL
16894 at *2 (8th Cir. Jan. 19, 1996) (standard of review; listing
factors to consider), or in granting defendants summary judgment
without offering Parmelee an opportunity to amend his complaint.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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