The U.S. Northern District of California Court dismissed a civil rights action filed by Mark Adam Cottonham, an inmate at the Santa Rita Jail in Alameda County. Cottonham sued over his detainment by Bangkok, Thailand police upon a visit to the U.S. Embassy. The complaint was dismissed with prejudice because the U.S. has sovereign immunity from this complaint. The court found that Cottonham had filed a civil rights action under 42 U.S.C. § 1983, whereas in fact his claim should have been filed under as a tort. The complaint alleges that when Cottonham went to the U.S. Embassy in Bangkok, Thailand, on March 7, 2011 to obtain more pages for his passport, his passport was taken from him without explanation. In addition, he was arrested by Thai police, charged with a “3 day over stay and having no passport,” and incarcerated in an unpleasant Thai jail for eight days. His complaint was reviewed by the Court under 28 U.S.C. § 1915A.

A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must—with a liberal view See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)—identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b)(1),(2). Cottonham claimed a civil rights action under 42 U.S.C. § 1983. His claim plainly is not one under § 1983 because he does not allege that a “person acting under color of state law” deprived him of a right secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988). His claim should have been filed as a tort claim against the United States (acting through its agency, the United States Embassy) and governed by the Federal Tort Claims Act. The Federal Tort Claims Act (“FTCA”) passed in1946, 28 U.S.C. §§ 1346(b), 2671-2680 waives sovereign immunity of the United States for certain torts committed by federal employees acting within the scope of their employment. See FDIC v. Meyer, 510 U.S. 471, 475-76 (1994). The act provides that district courts have exclusive jurisdiction of civil actions against the United States for money damages “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 federal government while acting within the scope of his office or employment, 28 U.S.C. § 1346(b)(1). One of the exceptions to that waiver applies in the Cottonham case. Specifically, waiver of immunity does not apply to acts or omissions of the United States “arising in a foreign country.” 28 U.S.C. § 2680(k). This exception applies even if “the tort occurs in a foreign area under United States control.” Nurse v. United States, 226 F.3d 996, 1003 (9th Cir. 2000). The foreign country exception “bars all claims based on any injury suffered in a foreign country, regardless of where the tortuous act or omission occurred.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).

The court said that Cottonham cannot pursue a claim for the alleged wrongful confiscation of his passport by the U.S. Embassy in Bangkok because his claim is for an act or omission of the United States (through its agency, the U.S. Embassy) arising in a foreign country. The United States has not waived sovereign immunity for such a claim. Accordingly, this action was dismissed. Leave to amend was not granted because it would be futile: Cottonham could not plead around the sovereign immunity bar to his claim. Since the United States has immunity against Plaintiff’s complaint, it was dismissed with prejudice and the file was closed.