IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2009
No. 08-20369
Summary Calendar Charles R. Fulbruge III
Clerk
MELVIN E. JOHNSON,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA and FEDEX,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:08-CV-1585
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Melvin Johnson, federal prisoner # 16642-179, appeals the dismissal of his
pro se complaint for failure to state a claim. He sued the United States and
“FedEx” for damages based on the loss of his personal property, using the Feder-
al Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), and 2671-80. He
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-20369
alleges that he was a federal inmate awaiting sentencing when he was trans-
ported on October 17, 2006, between detention facilities in Texas and that his
personal property was lost in the course of these transfers because United States
marshals were negligent and failed to follow established procedures with respect
to maintaining custody and control of his personal property and managing the
delivery of it through FedEx. He asserts FedEx failed to fulfill its duty of care
with respect to the delivery of the property.
Johnson argues that his lawsuit was properly filed under the FTCA and
that the district court erred in applying a heightened pleading standard and
failing to accept his allegations as true. Instead of addressing that contention,
we affirm on a different ground, because “it is an elementary proposition, and
the supporting cases too numerous to cite, that this court may affirm the district
court’s judgment on any grounds supported by the record.” United States v.
Dunigan, 555 F.3d 501, 508 n.12 (5th Cir. 2009) (citation omitted).
“In the FTCA, Congress waived the United States’ sovereign immunity for
claims arising out of torts committed by federal employees.” Ali v. Federal Bur-
eau of Prisons, 128 S. Ct. 831, 835 (2008). Exempted from this waiver is “[a]ny
claim arising in respect of . . . the detention of any goods, merchandise, or other
property by any officer of customs or excise or any other law enforcement offic-
er.” 28 U.S.C. § 2680(c). Section 2680(c) encompasses claims “arising out of” the
detention of property, including claims based on negligent handling or storage
of detained property. Kosak v. United States, 465 U.S. 848, 854 (1984). “Section
2680(c) forecloses lawsuits against the United States for the unlawful detention
of property by ‘any,’ not just ‘some,’ law enforcement officers.” Ali, 128 S. Ct. at
841.
If a claim against the United States falls under § 2680(c), federal courts
lack subject matter jurisdiction to entertain it. See City of Garland v. Zurn
Indus., Inc., 870 F.2d 320, 326 (5th Cir. 1989). The lack of subject matter juris-
diction may be raised at any time sua sponte. Johnston v. United States, 85 F.3d
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No. 08-20369
217, 218 n.2 (5th Cir. 1996); Cozzo v. Tangipahoa Parish Council-President
Gov’t, 279 F.3d 273, 280 (5th Cir. 2002).
The district court lacked subject matter jurisdiction over Johnson’s claims
against the United States, because, accepting his factual allegations as true, and
construing his pro se complaint liberally, see Hogan v. Midland County Comm’rs
Court, 680 F.2d 1101, 1103 (5th Cir. 1982), it is beyond doubt that, in light of
§ 2680(c), Johnson cannot prove a plausible set of facts supporting his claims
against the United States that would entitle him to relief. See Lane v. Halli-
burton, 529 F.3d 548, 557 (5th Cir. 2008); Chapa v. United States Dep’t of Jus-
tice, 339 F.3d 388, 390-91 (5th Cir. 2003); Halverson v. United States, 972 F.2d
654, 656 (5th Cir. 1992). Johnson’s brief contains no argument that his allega-
tions against FedEx stated a claim on which relief may be granted, and he has
thus waived any such challenge to the district court’s decision. See Ruiz v. Unit-
ed States, 160 F.3d 273, 275 (5th Cir. 1998).
Johnson argues that the district court erred by dismissing his complaint
without requiring defendants to file an answer. The district court, however, was
not required to order service of process before dismissing for failure to state a
claim. See In re Jacobs, 213 F.3d 289, 290 (5th Cir. 2000).
Johnson contends the court erred by dismissing without allowing him to
amend the complaint or more fully articulate his claims. In general, it is error
to dismiss a pro se complaint without affording opportunity to amend. Bazrowx,
136 F.3d at 1054. Johnson filed, without leave, an amended complaint that add-
ed nothing new to his original complaint. The failure to afford him a chance to
amend or more fully articulate his claims is ameliorated, because Johnson had
alleged his best case. See id.
Johnson contends the district court erred by failing to state whether the
dismissal was with or without prejudice. The court committed no such error, be-
cause under F ED. R. C IV. P. 41(b), a dismissal for failure to state a claim on which
relief may be granted operates as an adjudication on the merits unless the dis-
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No. 08-20369
missal order states otherwise. See Rule 41(b); Hilliard v. Bd. of Pardons & Pa-
roles, 759 F.2d 1190, 1193 (5th Cir. 1985).
Johnson contends that the dismissal was erroneous because it violated his
rights under the Seventh Amendment. Because the jury, as a trier of fact, has
no role with respect to dismissals for failure to state a claim or lack of subject
matter jurisdiction, Johnson’s Seventh Amendment rights were not infringed.
See Barrett v. Indep. Order of Foresters, 625 F.2d 73, 75 (5th Cir. 1980) (per
curiam). Finally, Johnson asserts that the dismissal has caused him to bear an
undue financial burden to protect his right to file complaints, but he has waived
any challenge based on this assertion by failing to brief any argument in support
of it. See Ruiz, 160 F.3d at 275.
The judgment of dismissal is AFFIRMED.
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