* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 18 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN G. TRAPP, Plaintiff-Appellant,

v. UNITED STATES MARSHALS SERVICE; DAVID DILBERTI, Deputy Marshal; TROY SCHUSTER, Deputy Marshal; DARREN S. WEBER, Deputy Marshal; JOHN DOES (3), USMS Task Force Officers; CRAIG BEAM, Deputy Marshal, Defendants-Appellees. No. 04-3405 (District of Kansas) (D.C. No. 03-CV-3335-JAR)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Steven G. Trapp filed a civil rights complaint agai nst the United States Marshals Service (“USMS”) and several individual ag ents of the USMS. In his complaint, Trapp alleged the defendants violated hi s Fourth and Fifth Amendment rights in the course of effectuating his arrest. T he district court dismissed Trapp’s complaint for lack of jurisdiction, conclud ing that because the USMS was a federal governmental entity and the individual de fendants were sued in their official capacities the suit was barred by sovereig n immunity. Hatten v. White , 275 F.3d 1208, 1210 (10th Cir. 2002) (holding that a suit against a federal employee in his official capacity is a suit againstthe United States and that such a suit is barred by the doctrine of sovereign immunity). The district court further concluded that Trapp could not proceed against the United States under the waiver of sovereign immunity set out in the Federal Tort Claims Act (“FTCA”) because Trapp had not exhausted his administrative remedies. McNeil v. United
States , 508 U.S. 106, 113 (1993) (holding that “the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies”). Finally, the district court refused to consider the questions of qualified immunity and quasi-judicial immunity, con cluding that Trapp’s complaint did not state a claim against the individ ual defendants in their1 The defendants assert that this court lacks jurisdi ction over this appeal

because Trapp filed his notice of appeal one day late. In contrast to the defendants’ assertions, however, Trapp’s notice of appeal was timely filed. Judgment was entered dismissing the case on August 11, 2004. Trapp had sixty days to file his notice of appeal. Fed. R. App. P. 4(a)(1)(B). Sixty days after August 11, 2004, was Sunday, October 10, 2004. The next day, Monday, October 11, 2004, was Columbus Day. Accordingly, Trapp’s n otice of appeal was due on October 12, 2004. Fed. R. App. P. 36(a)(3), (4). Trapp’s notice of appeal filed on October 12, 2004, was, therefore, timely. -3- individual capacities. Exercising jurisdiction pur suant to 28 U.S.C. § 1291, 1 this
court affirms in part and reverses in part. The case is remanded to the district court for further proceedings consistent with this opinion. Trapp’s request to proceed in forma pauperison appeal is granted

. This court reviews de novo both a district court’s dismissal under Fed. R. Civ. P. 12(b)(1) and its determinations on sovereig n immunity. Ordinance 59 Ass’n v. United States Dep’t of Interior , 163 F.3d 1150, 1152 (10th Cir. 1998). Applying that standard, this court affirms the dism issal for lack of subject matter jurisdiction of Trapp’s claims against the USMS andthe individual defendants in their official capacity for those reasons set out b y the district court. Furthermore, because it was able to resolve the jurisdictional i ssues relating to Trapp’s claims against the USMS and the individual defendants in their official capacities based solely on the facts set out in Trapp’s pleadings, the district court did not err in dismissing those claims without holding an evidenti ary hearing. Holt v. United-4-

States , 46 F.3d 1000, 1003 (10th Cir. 1995); United States v. Gaines , 964 F.2d 972, 977 (10th Cir. 1992). The district court erred, however, in concluding th at Trapp’s complaint did not state a claim, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971), against the individual defen dants in their individual capacities. We recognize that in his form complaint, Trapp checked the box indicating that he was suing each o f the defendants in their official capacities. Nevertheless, the context of the complaint and accompanying documents indicate that Trapp was also raising clai ms against the individual defendants in their individual capacities. In his Application to Proceed In Forma Pauperis, filed at the same time as Trapp filed his complaint, Trapp indicated that he was proceeding pursuant to either 42 U.S.C. § 19 83 or Bivens . Furthermore, in his prayer for relief, Trapp sought punitive damage s. See Shabazz v. Coughlin , 852 F.2d 697, 700 (2d Cir. 1988) (holding that pray er for punitive damages shows suit is against officer in individual capacity); Gregory v. Chehi , 843 F.2d 111, 119-20 (3d Cir. 1988) (same). None of the individu al defendants suffered any prejudice from Trapp’s failure to specifically indi cate in his complaint that he was bringing claims against them in their official capa cities. In their motion to dismiss, the individual defendants specifically rai sed the defenses of qualified immunity and quasi-judicial immunity. See Shockley v. Jones , 823 F.2d 1068,2Because he was proceeding pro se , the district court was obligated to read

Trapp’s complaint liberally. See Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998). -5- 1071 (7th Cir. 1987) (holding that by raising a qua lified immunity defense, the defendants demonstrated that they believed the suitwas against them in their individual capacities). In addition, in his respon se to the defendants’ motion to dismiss, Trapp specifically argued that sovereign i mmunity did not dispose of his claims because he was proceeding against the indivi dual defendants pursuant to
Bivens . Because Trapp’s pro se complaint 2set out claims against the individual defendants in their individual capacities, the district court erred in dismissing the entire suit for lack of subject matter on the groun d of sovereign immunity. Id. at 1071-72. The district court’s dismissal of Trapp’s claims ag ainst the USMS and the defendants in their official capacities for lack of jurisdiction is hereby
AFFIRMED . Its dismissal of the entire complaint for lack o f jurisdiction is
REVERSED and the matter is REMANDED to the district court for further proceedings consistent with this opinion.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge