Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2009

Ikelionwu v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4396




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Recommended Citation
"Ikelionwu v. Nash" (2009). 2009 Decisions. Paper 1398.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1398


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CLD-143                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-4396
                                     ___________

                              MICHAEL IKELIONWU,
                                         Appellant

                                          v.

                              WARDEN JOHN NASH;
                          UNITED STATES OF AMERICA
                           __________________________

                     Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Civil No. 06-cv-00625)
                     District Judge: Honorable Robert B. Kugler
                           __________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 26, 2009

          Before: RENDELL, HARDIMAN and STAPLETON, Circuit Judges

                                 (Filed: May 5, 2009)
                                      _________

                             OPINION OF THE COURT
                                   _________

PER CURIAM

      Michael Ikelionwu, a prisoner proceeding pro se, filed a complaint under the

Federal Tort Claims Act (“FTCA”) seeking damages for personal property allegedly
misplaced by Bureau of Prisons (“BOP”) officials. Ikelionwu appeals from the District

Court order dismissing his complaint for lack of subject matter jurisdiction pursuant to

Rule 12(b)(1) of the Federal Rules of Civil Procedure. We have jurisdiction pursuant to

28 U.S.C. § 1291. Because the appeal does not present a substantial question, we will

summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6.

                                             I

       In February 2005, Ikelionwu filed an administrative tort claim with the BOP,

seeking damages in the amount of $20,000,000 for the loss of his personal property and

legal documents, which were allegedly misplaced during his transfer from F.C.I. Fort Dix

to F.C.I. Allenwood. The BOP offered Ikelionwu $150 to settle the claim, which he

rejected. Ikelionwu then filed a FTCA claim against John Nash, the warden at F.C.I. Fort

Dix, in federal district court and subsequently amended his complaint to include the

United States as a defendant.

       In March 2008, Defendant-Appellee Nash filed a Rule 12(b)(1) motion to dismiss,

alleging that the Supreme Court’s recent decision in Ali v. Fed. Bureau of Prisons, 128 S.

Ct. 831 (2008), deprived the District Court of jurisdiction over the case. The District

Court agreed and dismissed the complaint. Ikelionwu filed a timely notice of appeal.

                                             II

       The District Court dismissed Ikelionwu’s complaint pursuant to Fed. R. Civ. P.

12(b)(1), reasoning that the doctrine of sovereign immunity bars Ikelionwu’s claim under



                                             2
the FTCA. The FTCA provides “a limited waiver of sovereign immunity, making the

Federal Government liable to the same extent as a private party for certain torts of federal

employees acting within the scope of their employment.” United States v. Orleans, 

, 813 (1976). This waiver includes “claims . . . for money damages . . . for injury

or loss of property . . . caused by the negligent or wrongful act or omission of” a

government employee. 28 U.S.C. § 1346(b)(1). However, an exception to the waiver of

immunity applies to claims against “law enforcement officers” arising from the “detention

of any goods, merchandise, or other property.” 28 U.S.C. § 2680(c). BOP officials

accused of misplacing prisoner property fall within the ambit of § 2680(c). See 

. Accordingly, the District Court correctly concluded that it lacks subject

matter jurisdiction based on the doctrine of sovereign immunity.

       Ikelionwu argues that sovereign immunity is waived in his case because 1) the

BOP settlement offer informed him that he could institute a suit against the United States

if he did not accept the settlement; and 2) Defendant-Appellee Nash admitted in his first

motion to dismiss that Ikelionwu’s suit was properly filed under the FTCA. Because

“neither courts nor government officials can effectuate” a waiver of sovereign immunity,

Governor of Kansas v. Kempthorne, 

, 844 (10th Cir. 2008), we agree with

the District Court that Ikelionwu’s arguments lack merit. Accordingly, we summarily

affirm the judgment of the District Court.




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