* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 27 2002 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL H. MYLES, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 02-3157 D.C. No. 00-CV-3298-JTM (D. Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
Samuel Haywood Myles, a pro se federal prisoner, br ought this action under the Federal Tort Claims Act (FTCA), seeking d amages for the alleged mishandling of his property by prison officials. T he government moved to dismiss under Fed. R. Civ. P. 12(b)(1) or alternati vely for summary judgment,-2-

contending that the court lacked jurisdiction over Mr. Myles’s claim because it is barred by an exception to the FTCA. The court agre ed and granted the government’s motion. Mr. Myles appeals and we affi rm. We first address our standard of review. When, as here, a Rule 12(b)(1) motion goes beyond the allegations in the complaintand challenges the facts upon which subject matter jurisdiction depends, a distri ct court may allow affidavits and other evidentiary material outside the pleading s and does not presume that the factual allegations in the complaint are true. See Holt v. United States , 46 F.3d 1000, 1002-03 (10th Cir. 1995). The consideration of such evidence does not convert the motion into one for summary judgment un less the resolution of the merits of the case is intertwined with the jurisdic tional issue. Id. at 1003. We have held that the merits and the jurisdictional is sue are intertwined “if subject matter jurisdiction is dependent on the same statut e which provides the substantive claim in the case.” Id. We need not determine whether that circumstance is present here, however, because in this case the pertinent jurisdictional facts are undisputed. We review the district court’s legal conclusions de novo under either Rule 12(b)(1) or Rule 56. Mr. Myles was incarcerated at the United States Pen itentiary, Leavenworth, Kansas, from 1995 to 2000. During that time, in re sponse to violence at the prison, the institution was placed in “lockdown” st atus and massive shakedowns1 The government presented evidence that three carto ns were shipped to and

received by another person designated by Mr. Myles. The total weight of these boxes was over 131 pounds, leading the government t o the reasonable inference that these boxes contained Mr. Myles’ books. In hi s brief on appeal, Mr. Myles appears to acknowledge that his brother, Mr. Riley, did in fact receive several boxes of books shipped from Leavenworth some six mo nths after the mug and plate arrived at their destination. It is unclear whether all of Mr. Myles’ confiscated property is now accounted for. We neednot address this factual matter, however, in view of our conclusion that the district court lacked subject matter jurisdiction. -3- of inmate cells were conducted. Inmate property in excess of that allowed in the cells under prison regulations was confiscated and mailed at government expense to an address designated by the inmate. It is undi sputed that two contraband items in Mr. Myles’ cell, a ceramic mug and plate, were confiscated, sent to, and received by a person designated by Mr. Myles. He a lleged, however, that 151 books were taken by prison officials and lost in sh ipping. 1 After filing an administrative claim for his books, Mr. Myles broug ht the instant action. The FTCA constitutes a waiver of the sovereign immu nity of the United States and therefore must be strictly construed to prevent expanding the waiver beyond the limits intended by Congress. See Pipkin v. United States Postal Serv. , 951 F.2d 272, 275 (10th Cir. 1991). The waiver is jurisdictional, and the court therefore lacks subject matter jurisdiction over anaction that falls within one of the exceptions provided by the Act. See Bradley v. United States , 951 F.2d 268, 270 (10th Cir. 1991). The FTCA provides that its w aiver of sovereign immunity2Section 2680(c) was amended on April 25, 2000, to provide that it applies

to the detention of “any goods, merchandise, or other property .” 28 U.S.C. § 2680(c) (emphasis added). Because Mr. Myles’ books clearly fall within the ambit of “goods” or “merchandise,” we need not addr ess any retroactivity issue arising from the amendment.

3 On appeal, Mr. Myles attempts to rely on Crawford-El v. Britton , 523 U.S. 574 (1998). In that case, a prisoner in the Distri ct of Columbia correctional system brought an action under 42 U.S.C. § 1983 bas ed on allegations that prison officials misdirected boxes containing his propertyto punish him for exercising his First Amendment rights. Section 1983 is direct ed to action taken under color of state law. Because Mr. Myles is challenging conduct by federal officials taken under color of federal law, section 1983 is inappli cable. While Mr. Myles’ pro se complaint, construed broadly, may have sufficientlyalleged conduct by federal actors to state a claim under Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), he has named only the United States as a de fendant. A Bivens action may not be brought against the United States as such. See Farmer v. Perrill , 275 F.3d 958, 963 (10th Cir. 2001). We also note that throu ghout this litigation Mr. Myles has expressly proceeded only under the FTCA. -4- does not apply, inter alia, to “[a]ny claim arising in respect of . . . the detention of any goods or merchandise by any . . . law enforceme nt officer.” 28 U.S.C. § 2680(c). 2 We have held that “§ 2680(c) applies where a prison er alleges that defendant prison officials detained his personal pr operty and mailed it outside the prison.” Hatten v. White , 275 F.3d 1208, 1210 (10th Cir. 2002). As did the prisoner in Hatten , Mr. Myles seeks to assert a claim under the FTCA arising from goods detained by prison officials. Hatten therefore applies and Mr. Myles’ FTCA claim is barred under section 2680(c). Accord ingly, the district court correctly determined that it was without subject matter jurisdiction. 34The district court granted Mr. Myles leave to proc eed in forma pauperis

on appeal. Mr. Myles is reminded that he must cont inue payments until the appellate filing fee is paid in full. -5- The judgment of the district court is AFFIRMED

. 4
ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge