Brown v. Harvey

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

FRANKIE JOE BROWN )

)

Plaintiff, )

)

v. ) Case No. CIV-25-126-R

)

BOP LT. HARVEY et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Frankie Brown, a federal inmate appearing pro se and in forma

pauperis, filed this action under Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1971), seeking monetary relief and his transfer from FCI El Reno

or release from custody. Docs. 6 & 8.1 United States District Judge David L.

Russell referred the matter to the undersigned Magistrate Judge for initial

proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The

undersigned recommends the Court dismiss Plaintiff’s amended complaint in

its entirety without prejudice: Plaintiff’s request to be transferred is moot, he

seeks relief not available in a Bivens action, and the complaint fails to satisfy

the Rule 8 pleading standard.

1 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

I. Screening.

The Court must screen Plaintiff’s amended complaint and dismiss it, or

any part of it, if it is frivolous or malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. See 28 U.S.C. § 1915A; see also id. § 1915(e)(2)(B).

In conducting this review, the Court accepts Plaintiff’s allegations as

true and construes them, and any reasonable inferences to be drawn from

them, in the light most favorable to him. Kay v. Bemis, 500 F.3d 1214, 1217

(10th Cir. 2007). But “[t]he burden is on the plaintiff to frame a ‘complaint with

enough factual matter (taken as true) to suggest’ that he or she is entitled to

relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a

complaint must present “enough facts to state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570.

Although the Court liberally construes a pro se litigant’s pleadings,

Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court may not serve as

Plaintiff’s advocate, creating arguments on his behalf. See Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Nor may the Court craft legal

theories for the plaintiff or supply factual allegations to support his claims.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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In deciding whether to dismiss the complaint, in whole or in part, the

Court considers whether to allow the plaintiff an opportunity to amend the

complaint. See Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990).

Pro se plaintiffs should be given a reasonable opportunity to remedy defects in

their pleadings. Id. And the Court should grant an opportunity to amend

unless amendment would be futile. Bradley v. Val-Mejias, 379 F.3d 892, 901

(10th Cir. 2004). An amendment is futile if the amended claims would be

subject to immediate dismissal under the Fed. R. Civ. P. 12(b)(6) or § 1915A

standards. Id.

II. Plaintiff’s amended complaint.

Plaintiff is a federal inmate currently confined at United States

Penitentiary, Florence High (USP Florence-High). Federal Bureau of Prisons

Inmate Locator, https://www.bop.gov/inmateloc/ (BOP Register #07617-025)

(last visited April 17, 2025).

In his first claim for relief, Plaintiff claims that he has been participating

in programs “for [his] [First Step Act] or [Second Chance Act] . . . credit[s],” but

because of his unit team’s “retaliation” against him he is being wrongfully

imprisoned. Doc. 6, at 5. He claims that he has “documents [] show[ing] that

[his] history of violence should’ve been change[d] and [that he] should’ve had a

date of [November 28, 2024].” Id. at 6. He brings this claim against his “unit

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team,” Defendants FNU Pendarvis, FNU Hollis, and FNU Rother, and

Defendant Lieutenant Harvey in his official and individual capacity. Id. at 4-

5.2 Plaintiff seeks immediate release from custody and monetary compensation

in the amount of $10,000 a day starting from the period of November 28, 2024,

to the present as “if [he] was out working with the total.” Id. at 6.

In his second claim for relief, Plaintiff alleges that a staff member, Mr.

Pennick, assaulted him on February 11, 2025. See Doc. 8.3 Petitioner did not

name Mr. Pennick as a Defendant. Id. He alleges that Pennick informed him

that “if [he] look[ed] at his name, [] he was going to put [Plaintiff] on his head.”

Id. Plaintiff states that he asked to speak with “the lieutenant4” after this

2 Plaintiff does not specify whether he is suing Defendants Pendarvis,

Hollis, and Rother in their individual or official capacity as employees of FCI

El-Reno. See Doc. 6. Therefore, the Court liberally construes Plaintiff’s

complaint to assert claims against Defendants Pendarvis, Hollis, and Rother

in both capacities.

3 On February 14, 2025, Plaintiff filed with the Court a letter addressed

to the undersigned which contained these allegations. See Doc. 8. The Court

informed Plaintiff that letters are not recognized as pleadings, but that it

would construe his letter as a supplement to his amended complaint. See Doc.

10.

4 He does not specify whether this Lieutenant is Defendant Harvey. See

Doc. 8. Plaintiff’s claim against Defendant Harvey here also fails the Rule 8

pleading standard because he does not specifically identify Defendant Harvey

in the complaint as the lieutenant who threatened him with mace. See Doc. 8.

But the Court does not address this any further as any claims involving

Defendant Harvey are moot.

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conversation. Id. He claims that the unidentified lieutenant “took [him] to a

room and took out his mace and told [him] that he [would] use it on [him].” Id.

He asks the Court to “move [him] from this institution,” so that he suffers no

further harm. Id.

III. Discussion.

A. Plaintiff’s transfer request is moot.

Plaintiff was confined at FCI El Reno when he filed his amended

complaint, Doc. 6, Att. 1, but he is now confined at USP Florence-High. See

Bureau of Prisons Inmate Locator (BOP Register #07617-025). “When a

prisoner files suit against prison officials who work in the institution in which

he is incarcerated, seeking declaratory and injunctive relief . . . and then that

prisoner is subsequently transferred to another prison or released from the

prison system, courts are presented with a question of possible mootness.”

Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). “Because mootness is a

matter of jurisdiction, a court may raise the issue sua sponte.” McClendon v.

City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).

Plaintiff is no longer confined at FCI El Reno and no longer under the

care of any employees of FCI El Reno. “Because a prisoner’s transfer or release

signals the end of the alleged deprivation of his constitutional rights, an entry

of equitable relief in his favor would amount to nothing more than a declaration

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that he was wronged, and would have no effect on the defendants’ behavior

towards him.” Patterson v. Santini, 2016 WL 11642452, at *6 (D. Colo. Nov. 28,

2016); cf. Nasious v. Colorado, 495 F. App’x 899, 903 (10th Cir. 2012) (“[I]t is

well-settled that a prisoner’s transfer out of a prison moots his requests for . .

. injunctive relief against staff at that prison.”). There is no indication in the

record that Plaintiff will return to FCI-El Reno in the near term. His claim for

injunctive relief is moot.

Therefore, the Court should dismiss this claim without prejudice.

B. Plaintiff seeks relief not available in a Bivens action.

Plaintiff seeks immediate release from custody along with monetary

damages. Doc. 6, at 6. The basis for Plaintiff’s claim is an allegation that he

has done “programming for [his] [First Step Act] or [Second Chance Act]”

credits but has been retaliated against by prison staff and wrongfully

imprisoned. Id. at 5.

“[A] prisoner who challenges the fact or duration of his confinement and

seeks immediate release or a shortened period of confinement, must do so

through an application for habeas corpus.” Palma-Salazar v. Davis, 677 F.3d

1031, 1035 (10th Cir. 2012). “In contrast, a prisoner who challenges the

conditions of his confinement must do so through a civil rights action.” Id.;

Powell v. Fleming, 27 F. App’x 970, 973 (10th Cir. 2001) (“An action arising

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under Bivens, on the other hand, provides a means by which a prisoner may

challenge the conditions of his or her confinement.”).

“Although the Court is required to construe a pro se litigant’s arguments

liberally, Petitioner is the master of his own case.”Yarclay v. Micieli, No. CIV-

21-1159-R, 2022 WL 193738, at *2 (W.D. Okla. Jan. 20, 2022). The Court

cannot grant Plaintiff the request he seeks in a Bivens action because he seeks

to be immediately released from custody and vaguely asserts that the Bureau

of Prisons (BOP) withheld time credits under the First Step Act and Second

Chance Act. Doc. 6, at 5. See Waldon v. Maughn, No. CIV-20-412-JD, 2023 WL

2598695, at *2 n.5 (W.D. Okla. Mar. 22, 2023) (“Tenth Circuit precedent is clear

that a prisoner who challenges ‘the fact or duration of his confinement and

seeks immediate release . . . must do so through an application for habeas

corpus.’” (quoting Palma-Salazar, 677 F.3d at 1035)).

Therefore, the undersigned recommends that the Court dismiss

Plaintiff’s claim for immediate release without prejudice.

C. Plaintiff’s remaining claims against Defendants for monetary

compensation fail to satisfy the Rule 8 pleading standard.

Plaintiff also asserts claims against Defendants for monetary relief for

alleged constitutional violations under Bivens. See Doc. 6. Rule 8 of the Federal

Rules of Civil Procedure requires a complaint to contain “(1) a short and plain

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statement of the grounds for the court’s jurisdiction . . . ; (2) a short and plain

statement of the claim showing that the pleader is entitled to relief; and (3) a

demand for the relief sought.” Fed. R. Civ. P. 8(a). To avoid a dismissal for

failure to state a claim, a complaint must set out factual allegations that “raise

a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

The complaint must contain sufficient factual matter, accepted as true,

to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627

F.3d 1178, 1184 (10th Cir. 2010).

“Rule 8 serves the important purpose of requiring plaintiffs to state their

claims intelligibly so as to inform the defendants of the legal claims being

asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). In other

words, the complaint must give each defendant fair notice of the claims against

him or her and, at a minimum, Plaintiff must inform Defendants about what

they have allegedly done to violate federal law. See Barfield v. Commerce

Bank, 484 F.3d 1276, 1281 (10th Cir. 2007). That is, from the allegations in the

complaint, Defendants must be able to learn “what [they] did to [Plaintiff];

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when [they] did it; how [their] action harmed [Plaintiff]; and, what specific

legal right [Plaintiff] believes [they] violated.” Nasious v. Two Unknown

B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).

Pro se litigants are not excused from complying with these minimal

pleading demands. “This is so because a pro se plaintiff requires no special

legal training to recount the facts surrounding his alleged injury, and he must

provide such facts if the court is to determine whether he makes out a claim on

which relief can be granted.” Hall, 935 F.2d at 1110. It is also improper for the

Court “to assume the role of advocate for a pro se litigant.” Id. Thus, the Court

cannot “supply additional facts, [or] construct a legal theory for [P]laintiff that

assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197

(10th Cir. 1989).

Plaintiff links none of the Defendants with the alleged violations of his

constitutional rights. Plaintiff does not identify the role Defendants played in

his alleged wrongful imprisonment or how or what the alleged retaliation even

stems from. Plaintiff’s threadbare allegations in his amended complaint do not

satisfy the Rule 8 pleading standard. And his allegations do not satisfy the

required pleading of personal participation by each Defendant in the alleged

constitutional violations under Bivens. See Pahls v. Thomas, 718 F.3d 1210,

1225 (10th Cir. 2013) (“Because § 1983 and Bivens are vehicles for imposing

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personal liability on government officials, we have stressed the need for careful

attention to particulars, especially in lawsuits involving multiple defendants.

‘[I]t is particularly important’ that plaintiffs ‘make clear exactly who is alleged

to have done what to whom, . . . as distinguished from collective allegations.’”)

(quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th

Cir.2011), and then quoting Robbins, 519 F.3d at 1250).

The Court should dismiss Plaintiff’s remaining claims for monetary

compensation against Defendants for failure to satisfy the Rule 8 pleading

standard.

D. The Court should not grant leave to amend, because any

amendment would be futile.

“Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be

given freely, the district court may deny leave to amend where amendment

would be futile.” Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Inv’r’s Servs.,

Inc., 175 F.3d 848, 859 (10th Cir. 1999). Any amendment would be futile

because Plaintiff’s claims fall outside the narrow rubric of a viable Bivens

action.

Bivens established “an implied private action for damages against federal

officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme Court has recognized a

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Bivens remedy in only three cases: (1) Bivens (a Fourth Amendment

unreasonable search and seizure claim); (2) Davis v. Passman, 442 U.S. 228

(1979) (a Fifth Amendment equal protection claim for gender discrimination);

and (3) Carlson v. Green, 446 U.S. 14 (1980) (an Eighth Amendment failure to

provide adequate medical treatment claim). “These three cases—Bivens,

Davis, and Carlson—represent the only instances in which the [Supreme]

Court has approved of an implied damages remedy under the Constitution

itself.” Ziglar v. Abbasi, 582 U.S. 120, 131 (2017).

And “Bivens is now all but dead.” Rowland v. Matevousian, 121 F.4th

1237, 1241-42 (10th Cir. 2024); see Logsdon v. United States Marshal Serv., 91

F.4th 1352, 1355 (10th Cir. 2024) (calling Bivens “a relic of the 20th century”).

Indeed, in the decades since Bivens was decided, the Court has “progressively

chipped away at the decision—to the point that very little of its original force

remains.” Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022); see also

Egbert v. Boule, 596 U.S. 482, 491-93 (2022) (listing cases in which the Court

has declined to extend Bivens).

Even with the most liberal construction, Plaintiff’s claims involving

retaliation and the unavailability of the First Step Act and the Second Chance

Act fall outside the narrow Bivens framework for an implied damages remedy

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under the Constitution. So the Court should not give Plaintiff another

opportunity to amend his pleadings.

IV. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the

dismissal of Plaintiff's complaint in its entirety without prejudice.

The undersigned advises Plaintiff of his right to file an objection to this

report and recommendation with the Clerk of this Court on or before May 8,

2025, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The

undersigned further advises Plaintiff that failure to make a timely objection to

this report and recommendation waives the right to appellate review of both

factual and legal questions contained herein. See Moore v. United States, 950

F.2d 656, 659 (10th Cir. 1991).

This report and recommendation disposes of all issues referred to the

undersigned Magistrate Judge in this matter.

ENTERED this 17th day of April, 2025.

hea _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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