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SMITH v. U.S.

Nos. 07-3242, 08-3109.

561 F.3d 1090 (2009)

Byron SMITH, Plaintiff-Appellant, v. UNITED STATES of America; Eric Holder, United States Attorney General, in his official capacity; Alberto Gonzales, former United States Attorney General, in his individual capacity; Federal Bureau of Prisons; United States Penitentiary, Leavenworth, Kansas; and H. Lappin, Director, Federal Bureau of Prisons; Eddie Gallegos, Acting Warden; William E. Howell, Jr., Safety Manager, Federal Bureau of Prisons; John Parent, Custodial Maintenance Services Manager, Federal Bureau of Prisons; Teresa Hartfield, Education Administrator/Principle, Federal Bureau of Prisons; Jeffery Sinclair, Electric Shop Supervisor, Federal Bureau of Prisons; John Doe, Education Staff Member, Federal Bureau of Prisons; Janet Durbin, Education Staff Member, Federal Bureau of Prisons; Stephanie Wheeler, Safety Officer, Federal Bureau of Prisons, in their official and individual capacities, Defendants-Appellees.

United States Court of Appeals, Tenth Circuit.

March 31, 2009.

Attorney(s) appearing for the Case

Daniel S. Volchok, (Judith E. Coleman, with him on the briefs), Wilmer Cutler Pickering Hale and Dorr, LLP, Washington, D.C., for Plaintiff-Appellant.1

Edward Himmelfarb, (Eric F. Melgren, United States Attorney; Andrea L. Taylor, Assistant United States Attorney, Kansas City, KS, on the appellees' brief; Marietta Parker, Acting United States Attorney, Kansas City, KS; Gregory G. Katsas, Assistant Attorney General; Barbara L. Herwig, Attorney, Appellate Staff, Civil Division, Washington, D.C., with him on the supplemental brief), Attorney, Appellate Staff, Civil Division, Washington, D.C., for Defendants-Appellees.

Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant Byron Smith brings claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) against Defendants-Appellees. Defendants-Appellees are the United States, the Attorney General of the United States,2

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