UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARKOS N. PAPPAS, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 14-6197 (D.C. No. 5:12-CV-00753-F) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, LUCERO and MATHESON , Circuit Judges.
Markos Pappas, a federal prisoner pr oceeding pro se, appeals the district court’s dismissal of his Federal Tort Cl aims Act (“FTCA”) lawsuit. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 11, 2015
Elisabeth A. Shumaker Clerk of Court-2- I Pappas asserted two FTCA claims relate d to his incarceration at the Federal Correctional Institute in El Reno, Okla homa. He alleged he suffered sleep deprivation, torture, and ph ysical and emotional injuries when Bureau of Prisons (“BOP”) employees negligently and wrongf ully impounded his mattress and bedding for 30 days while he was in disciplinary segregation. The bedding was impounded from 7 a.m. to 7 p.m. as a disciplinary punishment, though Pappas says he was also denied a mattress on five nights. A dditionally, he alleged BOP employees negligently and wrongfully deprived hi m of the minimum out -of-cell exercise required by federal regulations , resulting in physical a nd emotional injuries. He averred that he repeatedly to ld BOP officials that staff were falsely stating he had refused out-of-cell exercise, but th ey did not correct the problem. The government moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6). After considering a series of reports and recommendations by a magistrate judge, the district court granted the mo tion, ruling that it lacked subject matter jurisdiction because Pappas failed to state a cognizab le FTCA claim. It rejected the government’s argument that the discretionary function exception to FTCA liability barred Pappas’ claims because it concluded that BOP em ployees had no discretion: they were required by federa l regulations to furnish in mates with a mattress and bedding at all times, prohi bited from segregating an inmate without bedding unless prescribed by a medical officer, and require d to give inmates a minimum of five-3- hours of out-of-cell exercise each week. See 28 C.F.R. § 541.21. 1 But as to the remaining central issue, the district court ruled that Pappas failed to point to any analogous liability under Oklahoma tort law for a private individual under circumstances like those allege d in his complaint. The di strict court also denied Pappas’ Fed. R. Civ. P. 59(e) moti on to alter or amend the judgment.
II The FTCA waives the United States’ s overeign immunity for negligence by a federal employee, but only to the same exte nt that a private person would be liable under “the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The United States can be he ld liable only “in the same manner and to the same extent as a private indivi dual under like circumstances.” § 2674. On appeal, Pappas argues the district court: (1) misapplied governing authority in ruling that he failed to demonstrate analogous tort liability under Oklahoma law; and (2) improperly dismisse d his complaint without giving him an opportunity to amend. Be cause Pappas proceeds pro se, we construe his filings liberally. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008).

1 As in effect through July 19, 2011, the applicable regulations stated: “Living conditions may not be modified for the purpo se of reinforcing acceptable behavior,” id. § 541.21(b); “[s]taff sha ll furnish a mattress and beddi ng,” and “[a]n inmate may not be segregated without . . . mattress, bl ankets and pillow, except when prescribed by the medical officer for medical or psyc hiatric reasons,” id. § 541.21(c)(3); and “[s]taff shall permit each segregated inma te no less than five hours exercise each week,” id. § 541.21(c)(6).-4- A To state a cognizable clai m under § 1346(b), the FTCA’s jurisdictional grant, a complaint must allege the el ements of that provision, in cluding, as relevant to the case at bar, that a private person would be li able to the plaintiff under the tort law of the state where the act or omission occurred. FDIC v. Meyer, 510 U.S. 471, 477 (1994) (listing the six elemen ts necessary under § 1346(b)). A claim that fails to allege facts sufficient to m eet this requirement must be dismissed for lack of subject matter jurisdiction. Dork ing Genetics v. United States , 76 F.3d 1261, 1264 (2d Cir. 1996). We review de novo the district court’s dismissal under Rule 12(b)(1) and (b)(6). Colo. Envtl. Coal. v. Wenke r, 353 F.3d 1221, 1227 (10th Cir. 2004). Pappas argues that the district court’s decision conflicts with a Supreme Court decision, United States v. Muniz, 374 U.S. 150 (1963). We disagree. In Muniz, the Court held that prisoners may sue the Un ited States under the FTCA for injuries sustained in a federal prison caused by a fe deral employee’s negligence, but only to the extent that a private individual under li ke circumstances would be liable under the applicable state law. Id. at 153 (citing § 2674). The Muniz decision includes a statement, on which Pappas focuses, that “the duty of care owed by the [BOP] to federal prisoners is fixed by 18 U.S.C. § 404 2, independent of an inconsistent state law.” 347 U.S. at 164-65. Section 4042 requires that the BOP “pr ovide for the safekeeping, care, and subsistence” of persons in its custody. § 4042(a)(2). Pappa s argues that, under-5- Muniz, the duty of care in § 4042 trumps any inconsistent Oklahoma duty of care. We need not address that question because the duty of care established by § 4042 does not appear inconsistent with Oklahoma law, which has noted the general rule that custodial personnel “mus t exercise reasonable care a nd diligence to protect those in [their] custody from known or reasonably perceivable dangers .” Seiler v. City of Bethany, 746 P.2d 699, 700 (Okla. Ct. App. 1987) (citing Restatement (2d) of Torts, § 314A(4) (quotation omitted)). The district court dismissed Pappas ’ complaint not because there is no Oklahoma duty to use reasonable care with persons in custody, but because Pappas did not demonstrate that conduct by a privat e person akin to that alleged in his complaint would constitute a violation of the duty of care under Oklahoma law. Pappas argues the district court failed to identify any Oklahoma state law that would bar his claim, but the court was under no obligation to do so. As the party averring jurisdiction, Pappas—the FTCA plaintiff—bear s the burden of proof to establish that the court possesses subject-matter jurisd iction based upon analogous Oklahoma private liability. See Miller v. United States, 710 F.2d 656, 662 (10th Cir. 1983) (holding plaintiff bears the burden of provi ng the district cour t has subject matter jurisdiction to consider FTCA claim); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (holding the law presumes th at a cause lies outside the limited jurisdiction of the federal cour ts and “the burden of establishing the contrary rests upon the party asserting jurisdiction”).-6- Pappas asserts that the district cour t misapplied a Tenth Circuit decision, Howard v. Zimmer, Inc., 718 F.3d 1209 (1 0th Cir. 2013) (“Howard II”). Following the Oklahoma Supreme Court’s answer to our certified question, this court held in Howard II that a private individual may ma intain a claim for ne gligence per se in Oklahoma against a medical-device manufactur er based on a viola tion of a Federal Food, Drug, and Cosmetic Act regulati on. 718 F.3d at 1210 (citing Howard v. Zimmer, Inc., 299 P.3d 463, 467 (Okla. 2013) (“Howard I”)). In his reply brief, Pappas argues the violation of the govern ing BOP regulations was sufficient under Howard I to assert a “n egligence per se” to rt claim under Oklahoma law. The district court rejected Pappas’ reliance on Howard I because Pappas’ claims were not analogous to the medical-d evice claims and fede ral regulations at issue in Howard I, nor did he demonstrat e that a private person could maintain a negligence per se claim in Oklahoma ba sed on any Oklahoma re gulations analogous to § 541.21. This analysis is sound. It is axiomatic that “[t]he violation of a federal regulation in and of itself is not a basis for liability under the FTCA.” Black Hills Aviation, Inc. v. United States, 34 F.3d 968, 973 n.2 (10th Cir. 1994). “Even if specific behavior is statutorily required of a federal employee, the government is not liable under the FTCA unless state law recogn izes a comparable lia bility for private persons.” Ayala v. United States, 49 F.3d 607, 610 (10t h Cir. 1995). Unlike regulations applicable to medical devices , Bureau of Prisons regulations have no application outside of the Bur eau of Prisons. Further, Ho ward I did not broadly hold,-7- as Pappas asserts, that all vi olations of a federal regula tion are negligence per se in Oklahoma. Rather, Howard I stated Oklaho ma “allows” such a cl aim; set forth what a plaintiff must show in orde r to claim that the violation of a particular regulation is negligence per se; and then app lied this test to a negligen ce claim which asserted that an implant failed because the medical-device manufacturer left oily residue on the implant in violation of fede ral regulations. 29 9 P.3d at 467-73. The district court correctly concluded that Pappas failed to demonstrate that Oklahoma would impose negligence-per-se liability on a private indivi dual under “like circum stances” to those described in Pappas’ compla int, as is jurisdictionally required by § 1346(b) and § 2674. We conclude that the district c ourt did not err in di smissing Pappas’ FTCA claims.
B In his Rule 59(e) motion, Pappas asked the district court to set aside the judgment so he could amend hi s complaint. Pappas repeated ly stated an intention to amend his complaint in his pr e-judgment pleadings, yet faile d to seek time ly leave to amend before entry of judgment. After en try of judgment, Pappa s could not file an amended complaint unless the judgment was set aside or vacated. See Cooper v. Shumway, 780 F.2d 27, 29 ( 10th Cir. 1985) (per curiam) (“[O]nce judgment is entered the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).”). The district court found no justification for a post-judgment am endment. We review that decision for-8- an abuse of discretion. The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1086-87 (10th Cir. 2005). We conclude that the dist rict court did not abuse its discretion. Pappas seeks an amendment to argue that the district court misa pplied Oklahoma law and failed to identify any Oklahoma law that would bar his claims. He also seeks to provide more detailed arguments about the BOP’s duty of care under § 4042. As explained above, all of these arguments are meritless. T hus, the district cour t did not abuse its discretion in denying amendment on these gr ounds. Pappas also argues he should be permitted to amend to assert the elements of an Oklahom a intentional-infliction-ofemotional-distress claim be cause his allegations, singly or in combination, might state such a claim under Oklaho ma law. The district cour t acted within its discretion to deny amendment because Pappas failed to identify how he would meet the pleading requirements for such a claim.
III
We AFFIRM the district court’s judgment, GRANT Pappas’ motion to proceed in forma pauperis, and remind hi m of his obligation to continue making partial payments until the f iling fee is paid in full. Entered for the Court

Carlos F. Lucero Circuit Judge