Ortloff, Robert S. v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-2725

ROBERT S. ORTLOFF,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

ROBERT BARRIX, THOMAS JOHNSON, ET AL.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99 C 0829—Barbara B. Crabb, Chief Judge.

____________

ARGUED FEBRUARY 13, 2003—DECIDED JULY 11, 2003

____________

Before COFFEY, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Robert S. Ortloff, a federal pris-

oner, sued the United States and several prison officials

under the Federal Tort Claims Act, 28 U.S.C. § 2680, seek-

ing damages for the prison officials’ alleged destruction

of his personal property. Because some of the property

allegedly destroyed included materials related to several of

Ortloff’s pending lawsuits, he also alleged an access-to-

courts claim. The district court dismissed Ortloff’s access-to-

courts claim and, following a bench trial, ruled in favor of

the defendants on the merits of Ortloff’s FTCA claim. Ortloff

appeals. We affirm.

2 No. 01-2725

I.

During 1999, Robert Ortloff was serving a prison sen-

tence in the Federal Correctional Institute Oxford, in

Oxford, Wisconsin. On July 13 of that year, Officer Robert

Barrix, a prison guard at Oxford, searched Ortloff’s cell

and discovered 25 books of stamps, which exceeded the

number allowed under prison rules. After making this

find, Officer Barrix secured Ortloff’s cell and reported the

contraband to the operations lieutenant, who directed

Officer Barrix to immediately transfer Ortloff to the

Special Housing Unit (“SHU”). Ortloff was placed into

administrative detention in the SHU at 8:20 that evening.

After Ortloff’s transfer, Officer Barrix began inventory-

ing Ortloff’s property. He did this by placing Ortloff’s

personal property into cardboard boxes for transfer to the

SHU and by completing an “Inmate Personal Property

Form” for each box of materials. In packing the materials,

Officer Barrix removed items he believed were govern-

ment property, such as file folders and binders. He also

removed paper clips and binder clips. By the end of his

shift, Officer Barrix had inventoried and packed four

boxes of Ortloff’s property. Officer Thomas Johnson then

picked up where Officer Barrix left off, completing the

inventorying in a similar fashion. After the materials

were boxed, prison officials transferred a total of thirteen

boxes to the SHU.

Three days later, on July 16, 1999, Ortloff was released

from the SHU. The property officer on duty at that time

brought Ortloff ten boxes of non-contraband materials. The

parties dispute what happened at this point: the govern-

ment maintains that Ortloff declined to inventory his

property, whereas Ortloff states that the property officer

refused to allow him to review the materials. In any

event, Ortloff noted on the property form that he had not

No. 01-2725 3

reviewed the boxes and that prison officials had retained

two boxes. Prison officials claim that those two boxes

contained contraband and were mailed outside of the

prison. However, they did return one additional box to

Ortloff after he was released from the SHU.

Ortloff later filed suit against the United States and

several prison officials, claiming that the defendants

mishandled, damaged, and destroyed his personal prop-

erty, including lawsuit-related documents relating to

several pending habeas and civil rights actions he had

filed. In his complaint, he alleged the following claims:

the denial of his right of access-to-courts; intentional

infliction of emotional distress; a tort claim for the damage

or destruction of personal property; several miscellaneous

constitutional claims; and a claim based on the defendants’

alleged failure to follow administrative regulations. The

district court dismissed Ortloff’s access-to-courts claim

because he had failed to allege any specific or identifiable

harm to his pending lawsuits. As to Ortloff’s claim for

damage to his personal property, the district court con-

cluded that Ortloff had stated a claim under the FTCA, but

that the United States was the only proper defendant.

Accordingly, it substituted the United States on this claim

and dismissed the claim against the individual defendants.

The district court then declined to exercise supplemental

jurisdiction over Ortloff’s state law intentional infliction

of emotional distress claim, and also dismissed his ad-

ministrative claim and other miscellaneous constitutional

claims. After the district court dismissed Ortloff’s access-to-

courts claim, Ortloff filed a proposed amended complaint

which the district court construed as a motion to reconsider

its decision denying Ortloff leave to proceed in forma

pauperis on his access-to-courts claim. The district court

then reaffirmed its order dismissing Ortloff’s access-to-

courts claim.

4 No. 01-2725

This left only the FTCA claim against the United States.

The United States moved to dismiss that claim for lack of

jurisdiction, arguing that it had not waived sovereign

immunity for a damage claim based on the destruction of

goods by a prison official. The district court denied that

motion, concluding that Ortloff could state a claim under

the FTCA. The district court then held a bench trial on

Ortloff’s FTCA claim. Following trial, the district court

directed a verdict in favor of the United States under Fed. R.

Civ. P. 50. Ortloff appeals.

II.

On appeal, Ortloff challenges only two aspects of the

district court’s rulings. First, he argues that the district

court erred in dismissing his access-to-courts claim. Sec-

ond, he challenges the district court’s ruling on the merits

of his FTCA claim. We consider each argument in turn.

A. Access to Courts

Ortloff first challenges the district court’s dismissal of

his access-to-courts claim. The district court dismissed

this claim under Rule 12(b)(6) because Ortloff did not

allege any specific prejudice caused by the alleged destruc-

tion of his legal papers. We review the district court’s rul-

ing de novo. Del Raine v. Williford, 32 F.3d 1024, 1042 (7th

Cir. 1994).

Ortloff claims that the district court erred in dismissing

his access-to-courts claim because he alleged that the

defendants’ confiscation, seizure and destruction of his

legal materials severely prejudiced and adversely affected

his ability to prosecute at least three pending lawsuits. This,

Ortloff contends, is sufficient under the federal notice-

pleading standards of Rule 8(a).

No. 01-2725 5

Although Ortloff is correct that Rule 8(a) merely requires

a short, plain statement of the facts sufficient to put the

defendants on notice of the claim, the facts alleged must

nonetheless be sufficient to support a right to access-to-

courts claim. As this court explained in Martin v. Davies,

917 F.2d 336 (7th Cir. 1990), to state a right to access-to-

courts claim and avoid dismissal under Rule 12(b)(6), a

prisoner must make specific allegations as to the prej-

udice suffered because of the defendants’ alleged conduct.

Id. at 340. This is because a right to access-to-courts claim

exists only if a prisoner is unreasonably prevented from

presenting legitimate grievances to a court; various re-

sources, documents, and supplies merely provide the

instruments for reasonable access, and are not protected

in and of themselves. Id. Thus, when a plaintiff alleges

a denial of the right to access-to-courts, he must usually

plead specific prejudice to state a claim, such as by alleg-

ing that he missed court deadlines, failed to make

timely filings, or that legitimate claims were dismissed

because of the denial of reasonable access to legal

1

resources. Id. at 341. Ortloff’s general allegations of preju-

dice are insufficient under the precedent of this circuit.

Accordingly, the district court properly dismissed Ortloff’s

right to access-to-courts claim.

1

While a divided panel of this court in DeMallory v. Cullen, 855

F.2d 442, 449 (7th Cir. 1988), held that where a prisoner alleges

“a substantial and continuous limit on . . . access to legal ma-

terials or counsel, . . . the complaint carries an inherent allega-

tion of prejudice,” Ortloff did not allege such substantial and

continuous limitations. Therefore, the general rule of this

circuit, requiring the allegation of specific prejudice, controls. See

Martin, 917 F.2d at 340-41.

6 No. 01-2725

B. FTCA Claim

In addition to his right to access-to-courts claim, Ortloff’s

complaint also presented a claim for the alleged destruc-

tion of his property under the FTCA. The government

moved to dismiss this claim for lack of subject matter

jurisdiction, arguing that it had sovereign immunity from

suit and had not waived its immunity under the FTCA for

claims such as the one Ortloff was pursuing. The dis-

trict court rejected this argument, holding that it had

jurisdiction under the FTCA to consider Ortloff’s claim for

damages stemming from the alleged destruction of his

property. However, following a bench trial, the district

court entered judgment in the government’s favor on the

merits, concluding that Ortloff failed to establish that the

government had damaged or destroyed any of his prop-

erty. Ortloff appeals from this judgment.

On appeal, the government first reasserts its claim of

sovereign immunity from suit. The question of sovereign

immunity concerns the subject matter jurisdiction of

federal courts. LaBonte v. United States, 233 F.3d 1049,

1051 (7th Cir. 2000) (“The United States government may

be sued only where Congress has waived its sovereign

immunity and the existence of such waiver is a ‘prerequisite

for jurisdiction.’ ”). But see Clark v. United States, 326 F.3d

911, 913 (7th Cir. 2003) (questioning whether statutory

exceptions to liability under the FTCA concern a court’s

subject matter jurisdiction or the merits of the case). There-

fore, before considering the merits of Ortloff’s FTCA

claim on appeal, we must first determine whether the

district court properly exercised subject matter jurisdiction

over Ortloff’s claim.

“It is axiomatic that the United States as sovereign

cannot be sued without its consent.” Macklin v. United States,

300 F.3d 814, 820 (7th Cir. 2002). Thus, “the United States

No. 01-2725 7

government may be sued only where Congress has waived

its sovereign immunity . . . .” LaBonte, 233 F.3d at 1051.

Congress has waived its immunity, in part, by enacting

the FTCA in 1946. The FTCA “provides generally that the

United States shall be liable, to the same extent as a pri-

vate party, ‘for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act

or omission of any employee of the Government while

acting within the scope of his office or employment.’ ” Kosak

v. United States, 465 U.S. 848, 851-52 (1984) (quoting 28

U.S.C. § 1345(b)). This broad waiver of immunity, however,

is subject to multiple exceptions. See 28 U.S.C. § 2680(a)-(n).

In this case, the government relies on the exception to

its waiver of immunity contained in § 2680(c). Section

2680(c) provides that the government’s waiver of immunity

“shall not apply to . . . [a]ny claim arising in respect of the

assessment or collection of any tax or customs duty, or the

detention of any goods or merchandise by any offi-

cer of customs or excise or any other law enforcement

2

officers.” 28 U.S.C. § 2680(c). The government maintains

that because Ortloff’s claim “arise[s] in respect of the

detention of any goods,” namely his personal papers, “by

any other law enforcement officers,” to wit, the prison

guards, the exception of § 2680(c) applies and therefore the

3

government has not waived its sovereign immunity.

2

Congress amended Section 2680(c) on April 25, 2000. 28 U.S.C.

§ 2680(c). However, because Ortloff’s alleged claim arose prior

to this amendment and because the government does not

argue that this revision applies retroactively, we apply the stat-

ute in effect at the time of the alleged injury.

3

At oral argument we asked whether this was the position of

the local United States Attorney or the Attorney General,

(continued...)

8 No. 01-2725

Conversely, Ortloff contends that the “any other law

enforcement officers” language of that section only applies

when the “other law enforcement officers” are performing

or assisting in customs or excise functions. Because the

prison guards were not acting in those capacities, Ortloff

asserts that § 2680(c) is inapplicable.

“The Supreme Court has noted the ambiguity as to the

reach of the phrase ‘any other law enforcement officer,’

but has not determined whether the section 2680(c) ex-

emption is limited to the customs or excise context.” Formula

One Motors, Ltd. v. United States, 777 F.2d 822, 823 (2d Cir.

1985) (citing Kosak v. United States, 465 U.S. 848, 852 n.6

4 5

(1984)). We also have not yet resolved this issue. Several

other circuits, however, have addressed that issue, al-

3

(...continued)

and were informed that this position comes from Washington

and the Attorney General’s office.

4

In Kosak, in addition to noting this ambiguity, the Supreme

Court explained that in interpreting the meaning of “any other

law enforcement officer,” the principle that “sovereign im-

munity is the rule, and that legislative departures from the

rule should be strictly construed” is unhelpful when trying to

determine the scope of § 2680(c)’s exception. Kosak, 465 U.S.

at 854 n.9.

5

In United States v. 1500 Cases, More or Less, 249 F.2d 382 (7th

Cir. 1957), this court quoted §2680(c)’s exception, but did not

discuss the meaning of the “any other law enforcement officer”

language. Rather, in that case, we first noted that the plaintiff

had not presented an FTCA claim before the district court,

and then stated that even if they had, since the plaintiff never

filed a complaint seeking damages from the United States be-

fore filing suit, it could not maintain an action under the FTCA.

The reference to § 2680(c) was in passing, and not dispositive

of the case.

No. 01-2725 9

though there is a split in the circuits as to the scope of

§ 2680(c). The Fifth, Eight, Ninth, Tenth, Eleventh and

Federal Circuits have concluded that section 2680(c)’s “other

law enforcement officer” exemption applies to all law

enforcement officers, and not merely those performing

customs or excise functions. See United States v. 2,116

Boxes of Boned Beef, 726 F.2d 1481, 1490-91 (10th Cir. 1984)

(USDA agents included); Halverson v. United States, 972

F.2d 654, 655-56 (5th Cir. 1992) (border patrol agents in-

cluded); Schlaebitz v. United States Dep’t of Justice, 924 F.2d

193, 194 (11th Cir. 1991) (federal marshals included); Ysasi

v. Rivkind, 856 F.2d 1520, 1525 (Fed. Cir. 1988) (border

patrol agents included); United States v. Lockheed L-188

Aircraft, 656 F.2d 390, 397 (9th Cir. 1979) (FAA employees

included); Cheney v. United States, 972 F.2d 247, 248 (8th Cir.

1992) (drug task force agent protected). Conversely, the

Sixth Circuit and the D.C. Circuit have held that the “any

other law enforcement officer” exception is limited to

officers performing customs and excise functions. Bazuaye

v. United States, 83 F.3d 482, 486 (D.C. Cir. 1996) (noting

that § 2680(c) is limited to detention of goods by law

enforcement officers acting in tax or customs capacities);

Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994)

6

(accord). For the following reasons, today we join the

6

Some circuits have cited the Second Circuit’s decision in

Formula One Motors, Ltd. v. United States, 777 F.2d 822 (2d Cir.

1985), for the proposition that the “any other law enforcement

officer” language applies broadly to all law enforcement offi-

cers. See, e.g., United States v. Bein, 214 F.3d 408, 415 (3d Cir.

2000); Halverson v. United States, 972 F.2d 654, 656 (5th Cir.

1992). Conversely, the D.C. Circuit in Bazuaye v. United States,

83 F.3d 482, 484 (D.C. Cir. 1996), cited the Formula One decision

for the proposition that the Second Circuit suggested that they

(continued...)

10 No. 01-2725

Sixth Circuit and D.C. Circuit and hold that the excep-

tion found in § 2680(c) applies only to law enforcement

officers performing functions related to customs and

excise duties.

First, as the Supreme Court has explained, “[w]e do

not . . . construe statutory phrases in isolation; we read

statutes as a whole.” United States v. Morton, 467 U.S. 822,

828 (1984). Thus, we cannot parse the “any other law

enforcement officer” language from the remainder of

§ 2680(c), but rather that language must be read as part

of the totality of § 2680(c). In its entirety, as excerpted

above, § 2680(c) provides that the government’s waiver

of immunity shall not apply to “[a]ny claim arising in

respect of the assessment or collection of any tax or cus-

toms duty, or the detention of any goods or merchandise

by any officer of customs or excise or any other law en-

forcement officers.” 28 U.S.C. § 2680(c). In context, then,

the “any other law enforcement officer” language con-

veys a drastically different meaning than in isolation, as

the principles of ejusdem generis and noscitur a sociis dem-

onstrate. First, the principle of ejusdem generis, or “[o]f the

same kind, class, or nature,” Kurinsky, 33 F.3d at 596 n.2

(quoting Black’s Law Dictionary 464 (5th ed. 1979)), in-

structs “that where general words follow an enumera-

6

(...continued)

would limit the exception to law enforcement officers perform-

ing customs and excise functions. However, neither view is

correct, as the Second Circuit in Formula One expressly noted

that it was not reaching the issue because the DEA agents

who seized the automobile and its contents were acting suffi-

ciently like the function of customs agents to fall within the

scope of the exception of section 2680(c). Formula One, 777 F.2d

at 823-24.

No. 01-2725 11

tion of persons or things, by words of a particular and

specific meaning, such general words are not to be con-

strued in their widest extent, but are to be held as apply-

ing only to persons or things of the same general kind

or class as those specifically mentioned.” Kurinsky, 33 F.3d

at 597 n.2 (quoting Black’s Law Dictionary 464 (5th ed.

1979)). Under the principle of noscitur a sociis, or “[i]t is

known from its associates,” “the meaning of questionable

words or phrases in a statute may be ascertained by refer-

ence to the meaning of words or phrases associated with it.”

Id. at 597 n.3. These two principles of interpretation demon-

strate that the “any other law enforcement officer” lan-

guage must be read in light of § 2680(c)’s specific refer-

ence to claims arising out of the “collection of any tax or

customs duty,” and the class of officers identified, namely

“any officer of customs or excise.” Read in this light, the

“any other law enforcement officer” language thus means

any other law enforcement officers performing functions

related to customs or excise. Kurinsky, 33 F.3d at 596-97;

Bazuaye, 83 F.3d at 483-84.

Moreover, as the D.C. Circuit explained in Bazuaye,

limiting § 2680(c)’s exception to officers performing cus-

toms or excise functions is consistent with the rationale

underlying this exception. Specifically, “Congress carved

out the various § 2680 exceptions, at least in part, in order

to preclude tort suits against the government when other

‘adequate remedies’ were already available.’ ” Bazuaye, 83

F.3d at 484-85 (quoting Kosak, 465 U.S. at 858). In the case

of “[c]laims against federal officers carrying out the cus-

toms and tax laws [those claims] were among those for

which adequate remedies were already available.” Bazuaye,

83 F.3d at 485. However, “[t]he same [can] not be said for

plaintiffs injured by federal law enforcement officers act-

ing outside the authority of the customs and tax law.” Id.

12 No. 01-2725

at 485. Thus, the rationale underlying § 2680(c)’s excep-

tion in the context of customs and excise functions does

not justify a reading which would extend the coverage of

the exception to all other law enforcement officers. In fact,

such a broad reading of § 2860(c)’s exception would swal-

low up Congress’ waiver of immunity, given the poten-

tial number of federal law enforcement officials in our

modern government’s alphabet soup—i.e., the DEA, EPA,

FBI, FDA, FTC, INS, OSHA, SEC, or USDA, to name a few.

Moreover, reading the exception so broadly that it

includes all other law enforcement officers would render

superfluous the “any officer of customs or excise” language,

since such officers would clearly be covered by the broad

“any other law enforcement officer” language. Bazuaye, 83

F.3d at 484. In interpreting statutes, courts “should dis-

favor interpretations of statutes that render language

superfluous . . . .” Connecticut Nat’l Bank v. Germain, 503

U.S. 249, 253 (1992). This added reason supports our

conclusion that the § 2680(c) exception only applies to law

enforcement officers performing custom or excise functions.

In response, the government points to the cases from

the majority of other circuits, all of which held that the

§ 2680(c) exception applies to all law enforcement officers

and not merely those performing customs or excise func-

tions. While the quantity of circuits favors the govern-

ment’s position, the quality of decisions favors Ortloff’s

view: The circuits that have held that § 2680(c) applies to

all other law enforcement officers have failed to consider

the “any other law enforcement officer” language in con-

text or in light of the principles of ejusdem generis and

noscitur a sociis. In fact, as Kurinsky recognized, those other

circuits merely conclusorily stated that § 2680(c) applies

to all law enforcement officers, without any analysis. See

Kurinsky, 33 F.3d at 598 (noting that “other appellate

No. 01-2725 13

courts that have addressed this issue have found that the

phrase ‘other law enforcement officer’ includes all types

of officers, whatever their duties, [but noting] . . . those

cases have not articulated a clear reason for this holding,

and have often stated their conclusions with little or

no analysis”). Conversely, the D.C. and Sixth Circuits in

Bazuaye v. United States, 83 F.3d 482 (D.C. Cir. 1996), and

Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir. 1994),

held that § 2680(c)’s exception applies solely to law en-

forcement officers performing customs or excise functions

7

only after conducting an in-depth analysis of the issue. We

find Kurinsky and Bazuaye’s analyses more persuasive

and adopt them today.

That, however, merely means that we have jurisdiction

over Ortloff’s FTCA claim. After exercising jurisdiction the

district court held a bench trial on his FTCA claim, at the

conclusion of which the court found that Ortloff failed

to present evidence to establish that any of his docu-

ments were damaged or destroyed. Based on this finding,

the district court granted the United States a directed

verdict under Rule 50. Ortloff appeals from this judg-

ment, arguing first that Rule 50 is inapplicable to a bench

trial, and that in any event the district court erred by failing

to make specific factual findings and in ruling in the gov-

ernment’s favor on his FTCA claim.

The government acknowledges Ortloff’s initial point: a

directed verdict pursuant to Rule 50(a) is appropriate

7

Because we conclude that § 2680(c) applies solely to law

enforcement officers acting in the customs or excise capacity,

we need not address Ortloff’s other contention that his legal

documents are not “goods” or “merchandise” within the mean-

ing of § 2680(c).

14 No. 01-2725

8

only in a jury trial. In a bench trial, the appropriate pro-

9

cedural mechanism for dismissal is Rule 52(c).

However, to the extent the district court relied on the

wrong procedural mechanism, that actually favored Ortloff,

because Rule 50(a) requires the court to consider the

evidence in the light most favorable to the plaintiff, Payne

v. Milwaukee County, 146 F.3d 430, 432 (7th Cir. 1998),

whereas Rule 52(c) allows the district court to weigh the

evidence to determine whether the plaintiff has proven

his case. Collins v. Ralston Purina Co., 147 F.3d 592, 599

(7th Cir. 1998). Thus, Ortloff was not prejudiced by the

district court’s procedural misstep.

Ortloff disagrees, arguing that because the district court

entered judgment pursuant to Rule 50(a)(1), the district

court failed to comply with Rule 52(c)’s requirement that

“[s]uch a judgment shall be supported by findings of fact

and conclusions of law as required by subdivision (a) of

8

Rule 50(a)(1) provides: “If during a trial by jury a party has

been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party

on that issue, the court may determine the issue against that

party and may grant a motion for judgment as a matter of law

against that party with respect to a claim or defense that can-

not under the controlling law be maintained or defeated

without a favorable finding on that issue.”

9

Rule 52(c) provides: “If during a trial without a jury a party has

been fully heard on an issue and the court finds against the

party on that issue, the court may enter judgment as a matter of

law against that party with respect to a claim or defense

that cannot under the controlling law be maintained or de-

feated without a favorable finding on that issue, or the court

may decline to render any judgment until the close of all the

evidence.”

No. 01-2725 15

this rule.” Subdivision (a) in turn requires: “In all actions

tried upon the facts without a jury or with an advisory jury,

the court shall find the facts specially and state separately

its conclusions of law thereon . . . .” Fed. R. Civ. P. 52(a).

However, Rule 52(a) allows for such findings to be made

orally, stating: “It will be sufficient if the findings of fact

and conclusions of law are stated orally and recorded in

open court following the close of the evidence or appear in

an opinion or memorandum of decision filed by the court.”

Moreover, as we explained in Denofre v. Transportation

Insurance Rating Bureau, 532 F.2d 43, 45 (7th Cir. 1976), Rule

52(a) merely “necessitates that the findings of fact on the

merits include as many of the subsidiary facts as are

necessary to disclose to the reviewing court the steps by

which the trial court reached its ultimate conclusion on

each factual issue.” In this case, the district court’s oral

ruling satisfied that requirement. Specifically, in ruling

against Ortloff, the district court explained its reasoning

in open court, stating in essence that the evidence pre-

sented was insufficient to establish that the prison offi-

cials had, in fact, destroyed or damaged any of Ortloff’s

property. See July 11, 2001, Transcript at 35-36 (“[T]here

is no indication . . . that you lost anything . . . I don’t

know what is missing. I don’t know whether anything

that is missing is of any value to you whatsoever in any way

that would allow me to find that you really had a loss.”)

Accordingly, the district court’s improper reliance on

Rule 50(a) is irrelevant, and we therefore affirm the judg-

10

ment in favor of the United States. See, e.g., Rothner v.

City of Chicago, 929 F.2d 297, 303 n.9 (7th Cir. 1991) (we may

affirm on any basis in the record).

10

Ortloff does not maintain on appeal that the district court’s

finding that the government did not destroy or damage his

property was clearly erroneous.

16 No. 01-2725

III.

The district court properly dismissed Ortloff’s right to

access-to-courts claim because he failed to allege any

specific prejudice to his pending litigation. The district

court also properly exercised jurisdiction over Ortloff’s

FTCA claim because § 2680(c) only excepts law enforce-

ment officers performing customs or excise functions,

and the prison guards in this case were not acting in those

capacities. But, on the merits, Ortloff’s FTCA claim fails

because he failed to satisfy his burden of proving that

the prison officials damaged or destroyed any of his prop-

erty. For these and the foregoing reasons, we AFFIRM.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-11-03