[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10752 November 13, 2007
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 07-00023-CV-HLM-4
ANTHONY MORROW,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS,
an agency of the United States of America,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 13, 2007)
Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Anthony Morrow, appearing pro se, appeals the district
court’s sua sponte dismissal of his complaint for failure to state a claim, 28 U.S.C.
§ 1915(e)(2).1 Reversible error has been shown; we vacate and remand for further
proceedings.
In his complaint, Plaintiff raised a Federal Tort Claims Act (“FTCA”) claim,
28 U.S.C. § 2671 et seq., alleging that the Federal Bureau of Prisons (“BOP”)
erred in calculating his release date from a BOP facility, which resulted in Plaintiff
being imprisoned for 10 days beyond his correct release date. Plaintiff also
alleged that his access to adequate medical care for squamous cell carcinoma was
delayed during this 10-day period.
The district court concluded that Plaintiff raised a claim of false
imprisonment and that, although the FTCA waives the federal government’s
sovereign immunity for some torts, the FTCA exempts false imprisonment claims
from this waiver. Therefore, the district court determined that the FTCA barred
Plaintiff’s claim; and it dismissed his case. On appeal, Plaintiff argues that the
1
Plaintiff filed a motion for reconsideration before the district court; and reconsideration was
denied. Plaintiff appealed the order denying his motion for reconsideration. Although we have
jurisdiction to review only those judgments or orders that the notice of appeal specifies, either
expressly or implicitly, see Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 785
(11th Cir. 2004), “an appeal is not lost if a mistake is made in designating the judgment appealed
from where it is clear that the overriding intent was effectively to appeal” the original judgment,
Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39 n.1 (5th Cir. 1980) (internal quotation
omitted), at least where appeal of that judgment is timely. Because Plaintiff is a pro se litigant, and
because it appears he intended to appeal the order of dismissal, we will construe Plaintiff’s notice
of appeal to include that order. Plaintiff offers no argument on the denial of his motion for
reconsideration; so that claim is abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344
(11th Cir. 1998).
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district court should have considered that the federal government has waived
sovereign immunity for false imprisonment claims involving law enforcement
officers; and he contends that BOP officials are law enforcement officers.
We review de novo a district court’s dismissal of a complaint under 28
U.S.C. § 1915(e)(2) for failure to state a claim; and we view the allegations in the
complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). “A
complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the prisoner can prove no set of facts in support of his claim
which would entitle him to relief.” Harmon v. Berry, 728 F.2d 1407, 1409 (11th
Cir. 1984). “Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
“The FTCA operates as a limited waiver of the United States’ sovereign
immunity. Unless the United States may be held liable pursuant to the terms of the
statute, the sovereign’s immunity remains intact, and no subject matter jurisdiction
exists.” Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir. 1996) (internal
citation omitted). We strictly construe the FTCA’s exceptions to sovereign
immunity. See Phillips v. United States, 260 F.3d 1316, 1318 (11th Cir. 2001).
The provision of the FTCA at issue here -- 28 U.S.C. § 2680(h) -- excepts “[a]ny
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claim arising out of . . . false imprisonment” from its waiver of sovereign
immunity but does allow for recovery on false imprisonment claims “with regard
to acts or omissions of investigative or law enforcement officers of the United
States Government . . . .” For section 2680(h), “‘investigative or law enforcement
officer’ means any officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for violations of Federal
law.” 28 U.S.C. § 2680(h).
Plaintiff asserts that he can proceed with his false imprisonment claim
because this claim concerns the acts of BOP officials, who are law enforcement
officers. BOP officials do have authority to make arrests for violations of certain
federal laws, see 18 U.S.C. § 3050; and at least one of our sister circuits has
concluded that a BOP official is a law enforcement officer under 28 U.S.C. §
2680(h). See Chapa v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003)
(“[A]s defined in [section] 2680(h), a BOP official is a federal law enforcement
officer.”). Because claims for false imprisonment “with regard to acts or
omissions of investigative or law enforcement officers of the United States
Government” are included in the FTCA’s waiver of sovereign immunity, the
district court erred in not considering whether Plaintiff had presented such a claim.
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Therefore, we vacate the district court’s order dismissing Plaintiff’s
complaint and remand for proceedings consistent with this opinion.2
VACATED AND REMANDED.
2
We also deny Plaintiff’s motion to supplement the record because the documents that Plaintiff
has submitted do not relate to facts necessary to decide the issues raised on appeal.
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