NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 19, 2015*
Decided March 20, 2015
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14‐3058 Appeal from the
United States District Court
MUFID ABDULQADER, for the Southern District of Indiana,
Plaintiff‐Appellant, Terre Haute Division.
v. No. 2:13‐cv‐0207‐WTL‐WGH
UNITED STATES OF AMERICA, William T. Lawrence,
Defendant‐Appellee. Judge.
O R D E R
Mufid Abdulqader, a federal prisoner, sued the United States under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. 1346(b), alleging that the Bureau of Prisons
negligently lost some of his legal papers, religious items, and other personal belongings
when he was transferred from USP Marion to FCI Terre Haute in May 2012. Before the
government had answered his complaint, Abdulqader served the United States with a
request for admission, see FED. R. CIV. P. 36, asking the government to admit that his
claim “is in fact a valid claim and this Plaintiff is unquestionably entitled to all of the
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 14‐3058 Page 2
sums so claimed for therein.” The United States never responded. Instead, it moved to
dismiss the suit for lack of subject‐matter jurisdiction because, the government argued,
the FTCA does not waive the government’s sovereign immunity for cases involving lost
or destroyed prisoner property. Abdulqader countered that the government had waived
its sovereign immunity by admitting—i.e., ignoring his request for admission—the
validity of his claim. See FED. R. CIV. P. 36(a)(3). The district court agreed with the
government that Abdulqader’s claim is barred by sovereign immunity but clarified that
a dismissal on that ground is for failure to state a claim for relief, see FED. R. CIV.
P. 12(b)(6), not lack of jurisdiction, see FED. R. CIV. P. 12(b)(1).
Abdulqader contests this ruling on appeal. But the district court correctly
concluded that although subject‐matter jurisdiction was secure, see Smoke Shop, LLC v.
United States, 761 F.3d 779, 782 n.1 (7th Cir. 2014); Williams v. Fleming, 597 F.3d 820,
823–24 (7th Cir. 2010), Abdulqader’s claim is barred by sovereign immunity. In enacting
the FTCA, Congress waived the United States’ sovereign immunity for suits alleging
injury—including the loss of property—attributable to negligence on the part of federal
employees acting within the scope of their employment. See 28 U.S.C. §§ 1346(b)(1),
2671–2680; Furry v. United States, 712 F.3d 988, 992 (7th Cir. 2013); On‐Site Screening,
Inc. v. United States, 687 F.3d 896, 898 (7th Cir. 2012). But in Ali v. Federal Bureau of Prisons,
552 U.S. 214 (2008), the Supreme Court held that § 2680(c) excludes from this waiver
claims involving the negligent handling of detained property by law‐enforcement
officers, which includes prison guards. Id. at 216, 228; see Kosak v. United States, 465 U.S.
848, 854 (1984); Parrott v. United States, 536 F.3d 629, 635–36 (7th Cir. 2008). Indeed, on
strikingly similar facts, the Court concluded in Ali that sovereign immunity blocked an
inmate’s suit alleging that the Bureau of Prisons lost personal property during a prison
transfer. 552 U.S. at 216–17, 227–28. Reinstating Abdulqader’s suit would run afoul of
Ali.
Nevertheless, Abdulqader insists that the government waived its sovereign
immunity by not responding to his request for admission. Yet, a “waiver of sovereign
immunity cannot be implied but must be unequivocally expressed,” United States v.
Mitchell, 445 U.S. 535, 538 (1980) (internal quotation marks and citation omitted);
see Edwards v. U.S. Dep’t of Justice, 43 F.3d 312, 317 (7th Cir. 1994), and any expression of
waiver will be strictly construed in the government’s favor, Lane v. Pena, 518 U.S. 187, 192
(1996); United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992). The government’s
unresponsiveness to Abdulqader’s Rule 36 request does not meet this standard.
Anyway, Rule 36 does not encompass demands—like Abdulqader’s—for legal
conclusions. See FED R. CIV. P. 36(a)(1)(A) (limiting scope of admissions to “facts, the
No. 14‐3058 Page 3
application of law to fact, or opinions about either”); United States v. Petroff‐Kline,
557 F.3d 285, 293 (6th Cir. 2009); 8B CHARLES ALLEN WRIGHT, ARTHUR R. MILLER &
RICHARD L. MARCUS, FEDERAL PRACTICE & PROCEDURE § 2255 & n.7, pp. 334–36 (3d ed.
2010).
AFFIRMED.