OpenJurist

82 F3d 418 Sharif v. Doe

82 F.3d 418

Ali Shah Shah SHARIF, Plaintiff-Appellant,
v.
John DOE(S), Defendants,
United States of America, Defendant-Appellee.

No. 95-5833.

United States Court of Appeals, Sixth Circuit.

April 5, 1996.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: NORRIS and SUHRHEINRICH, Circuit Judges, and WELLS, District Judge.*

ORDER

2

This pro se former federal prisoner appeals a district court judgment dismissing his complaint filed under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

After exhausting his administrative remedies, Sharif sued John Doe, Unit Officer, and John Doe, Receiving & Discharge Officer, in their individual and official capacities. Seeking a declaratory judgment, injunctive relief, and compensatory damages, he claimed that they breached their duty of care as bailees when they lost his property during a prison transfer. Sharif subsequently amended his complaint to add additional parties, including the United States. Upon consideration of the United States' motion to dismiss or for summary judgment, the district court adopted the magistrate judge's recommendation to substitute the United States as the real party and dismiss the action against the other defendants. The United States later renewed its motion for summary judgment, which the district court granted in its favor based on the magistrate judge's recommendation and finding that Sharif had failed to show gross negligence. Sharif has now filed a timely appeal, reasserting the same claim.

4

This court's review of a grant of summary judgment is de novo; it uses the same test as used by the district court. City Management Corp. v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir.1994). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see City Management, 43 F.3d at 250.

5

Upon review, we conclude that the district court properly granted summary judgment in favor of the defendant for the reasons set forth in the magistrate judge's report and recommendation. As the magistrate judge observed, the defendant would not be liable under Kentucky law because it met its duty of slight care as a gratuitous bailee by inventorying Sharif's property before and after the transfer. See Hargis v. Spencer, 71 S.W.2d 666, 669 (Ky.1934). Consequently, the defendant is not liable under the Federal Tort Claims Act. See 28 U.S.C. § 2674.

6

Accordingly, the district court's judgment is affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Lesley Brooks Wells, United States District Judge for the Northern District of Ohio, sitting by designation