Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JENNY SMITH, also known as §

JERRY WAYNE SMITH, §

ID # 54898-177, §

Plaintiff, §

§

v. § No. 3:24-CV-113-K-BW

§

FEDERAL BUREAU OF PRISONS, §

et al., §

Defendants. § Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Before the Court is the Complaint with Jury Demand, received on October 26,

2023 and transferred to this Court on January 16, 2024. (Dkt. No. 1.) Based on the

relevant filings and applicable law, the Court should DISMISS the complaint with

prejudice under 28 U.S.C. § 1915 and § 1915A.

I. INTRODUCTION

Jenny Smith, also known as Jerry Wayne Smith, a person born male who

identifies as a woman currently incarcerated at the Federal Correctional Institution,

Seagoville (“FCI Seagoville”), filed this civil rights action against the Federal Bureau

of Prisons (“BOP”), various BOP directors, administrators, and medical providers,

1 By Special Order No. 3-251, this pro se case has been automatically referred for full

case management. (See Dkt. No. 6.) By Special Order No. 3-354, this case was transferred

and reassigned to the undersigned on August 23, 2024. (See Dkt. No. 14.)

and the warden of FCI Seagoville for violation of his constitutional rights.2 (See id. at

3-7.) Smith seeks “declaratory and injunctive relief to require Defendants to provide

her the medical treatment they are obligated to provide her under the Eighth

Amendment, to house her in a women’s facility consistent with Defendants’

obligations to provide her equal protection under the Fifth Amendment, and to

protect her from the grave risk of serious physical and sexual assaults she faces on an

ongoing basis as required by the Eighth Amendment.” (Id. at 2.)

On February 16, 2024, and April 29, 2024, respectively, Smith responded to

Magistrate Judge’s Questionnaires (“MJQ”) to further clarify the claims presented in

this lawsuit. (See Dkt. Nos. 11, 13, 13-1.) In responses to the Court’s second MJQ,

Smith appears to add a corrections officer, two psychologists, a doctor, a former

warden, and three BOP departments as Defendants. (See Dkt. No. 13 at 2; Dkt. No.

13-1 at 2.)

II. PRELIMINARY SCREENING

Smith is a federal prisoner who has been permitted to proceed in forma

pauperis (“IFP”) in this action. (See Dkt. No. 9.) As a prisoner seeking redress from

a governmental entity and officers of same, his complaint is subject to preliminary

screening under 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th

2 The Court acknowledges that Smith’s preferred pronouns are female. (See generally

Dkt. No. 1.) Because the records in the federal criminal proceedings that resulted in Smith’s

current imprisonment used male pronouns when referring to Smith and because Smith

acknowledges being “assigned male at birth,” the Court uses male pronouns—unless

directly quoting Smith—in the interest of consistency when referring to Smith in this

recommendation. (Id. at 3; see also United States v. Smith, No. 3:16-CR-481-N (N.D. Tex.

May 19, 2017).)

Cir. 1998). Because Smith is proceeding IFP, the complaint also is subject to

screening under § 1915(e)(2). Both § 1915A(b) and § 1915(e)(2)(B) provide for sua

sponte dismissal of a complaint, or any part of it, if the Court finds it is frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief.

A frivolous complaint lacks any arguable basis, either in fact or in law, for the

wrong alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint has no

arguable basis in fact if it rests upon clearly fanciful or baseless factual contentions,

and similarly lacks an arguable basis in law if it embraces indisputably meritless legal

theories. See id. at 327; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). When

analyzing a prisoner’s complaint, the court may consider reliable evidence such as

the plaintiff’s allegations, responses to a questionnaire, and authenticated prison

records. See Wilson v. Barrientos, 926 F.2d 480, 483-84 (5th Cir. 1991); Berry v. Brady,

192 F.3d 504, 507 (5th Cir. 1999) (explaining in relevant part that responses to a

questionnaire are incorporated into the plaintiff’s pleadings).

In evaluating the sufficiency of a complaint, the Court accepts well-pleaded

factual allegations as true, but it does not credit conclusory allegations or assertions

that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836

F.3d 467, 469 (5th Cir. 2016). While courts hold pro se plaintiffs to a more lenient

standard when analyzing complaints, such plaintiffs must nevertheless plead factual

allegations that raise the right to relief above a speculative level. Id. (citing Taylor v.

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).

III. ANALYSIS

Smith sues the original officer Defendants in their individual capacities under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397

(1971), and the BOP and original officer Defendants in their official capacities under

§ 702 of the Administrative Procedure Act (“APA”). (Dkt. No. 11 at 2; see also Dkt.

No. 1 at 3-4.) Although Smith does not identify the legal bases on which the

Defendants identified in the responses to the Court’s second MJQ are sued, the

Court considers these Defendants sued under both statutes in the same manner as the

remaining Defendants. (See Dkt. No. 13 at 2; Dkt. No. 13-1 at 2.)

A. Bivens

Smith has alleged three categories of civil rights claims: (1) failure to provide

medical care under the Eighth Amendment, (2) failure to place Smith in a female

prison facility under the Fifth Amendment, and (3) failure to protect under the

Eighth Amendment. (See Dkt. No. 1 at 25-30.) Assuming that Smith seeks relief in

this action that is available under Bivens, the Court must determine if Smith’s claims

properly arise under Bivens. See Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir. 1999)

(“A Bivens action is analogous to an action under § 1983—the only difference being

that § 1983 applies to constitutional violations by state, rather than federal,

officials.”), abrogated on other grounds by Castellano v. Fragozo, 352 F.3d 939, 948-49

(5th Cir. 2003).

In Bivens, the United States Supreme Court created a cause of action under the

Fourth Amendment where federal agents allegedly “manacled” the plaintiff “in front

of his wife and children, and threatened to arrest the entire family”; “searched the

apartment from stem to stern”; and took him to a federal courthouse where he was

“interrogated, booked, and subjected to a visual strip search.” Bivens, 403 U.S. at

389. “Over the next decade, the Supreme Court recognized two other causes of

action against federal officers: (1) for gender discrimination against a former

congressional staffer in violation of the Fifth Amendment, see Davis v. Passman, 442

U.S. 228 (1979); and (2) for a failure to provide an asthmatic prisoner with adequate

medical care in violation of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14

(1980).” Bolden v. FBOP, No. 1:24-CV-00270, 2024 WL 4182123, at *1 (W.D. La.

Aug. 13, 2024), rec. adopted, 2024 WL 4181793 (W.D. La. Sept. 12, 2024). “Since

then, the Supreme Court has not once extended the Bivens remedy, and it has

declined to do so at least a dozen times.” Id. (citing Looper v. Jones, No. 22-40579,

2023 WL 5814910, at *1 (5th Cir. Sept. 8, 2023) (unpublished)).

As recently as June 30, 2025, the Supreme Court declined to extend Bivens to

include an implied cause of action for damages based on an excessive use of force

claim under the Eighth Amendment. See Goldey v. Fields, 606 U.S. 942 (2025). The

Supreme Court “has repeatedly emphasized that recognizing a cause of action under

Bivens is a disfavored judicial activity.” Id. at 944 (quoting Egbert v. Boule, 596 U.S.

482, 492 (2022)) (cleaned up); see also Ziglar v. Abassi, 582 U.S. 120, 135 (2017)

(same). “[C]reating a cause of action is a legislative endeavor.” Egbert, 596 U.S. at

491. “So today, ‘Bivens claims generally are limited to the circumstances’ of Bivens,

Davis, and Carlson.” Looper, 2023 WL 5814910, at *1.

“When analyzing a proposed Bivens claim, a court must consider: (1) whether

the case presents a new context; and (2) if so, whether there are any alternative

remedies or special factors indicating that judges are ‘at least arguably less equipped

than Congress’ to create a damages remedy.” Bolden, 2024 WL 4182123, at *2

(citing Egbert, 596 U.S. at 492). A proposed Bivens claim is “new” if the case is

different in any meaningful way from Bivens, Davis, or Carlson. See Abbasi, 582 U.S.

at 139. “Virtually everything else is a ‘new context’” and the “understanding of a

‘new context’ is broad . . . because even a modest extension of the Bivens trilogy is

still an extension.” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (citations and

internal quotation marks omitted).

1. Medical Care

With the aforementioned factors in mind, and based on Fifth Circuit case law

holding that a federal inmate’s Eighth Amendment claim based on a failure to

provide adequate medical care did not arise in a new Bivens context even though,

unlike in Carlson, the inmate “did not die, his need for medical attention did not

relate to asthma, and he had access to the administrative remedy process,” the Court

assumes for screening purposes that Smith’s Eighth Amendment claim based on his

medical care does not present a new context under Bivens. Vaughn v. Bassett, No. 22-

10962, 2024 WL 2891897, at *4 (5th Cir. June 10, 2024) (relying on Carlucci v. Chapa,

884 F.3d 534 (5th Cir. 2018)). The Court therefore addresses Smith’s Eighth

Amendment medical care allegations under Bivens.

The Eighth Amendment proscribes cruel and unusual punishments, which the

Supreme Court has interpreted to include deliberate indifference to the serious

medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976). For deliberate

indifference to rise to the level of a constitutional violation, the plaintiff must

establish that the defendant knew of and disregarded an excessive risk to the

plaintiff’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The

defendant “must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference.”

Id. A defendant’s “failure to alleviate a significant risk that he should have perceived

but did not” does not constitute a constitutional violation. Id. at 838. Deliberate

indifference “is an extremely high standard to meet.” Domino v. Tex. Dep’t of Crim.

Justice, 239 F.3d 752, 756 (5th Cir. 2001).

“A prison official acts with deliberate indifference ‘only if [(A)] he knows that

inmates face a substantial risk of serious bodily harm and [(B)] he disregards that risk

by failing to take reasonable measures to abate it.’” Gobert v. Caldwell, 463 F.3d 339,

346 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 847); see also Reeves v. Collins, 27 F.3d

174, 176-77 (5th Cir. 1994). Unsuccessful medical treatment, negligence, and

medical malpractice are insufficient to constitute deliberate indifference, as is a

prisoner’s disagreement with his medical treatment, absent exceptional

circumstances. See Hall v. Thomas, 190 F.3d 693, 697-98 (5th Cir. 1999); Stewart v.

Murphy, 174 F.3d 530, 537 (5th Cir. 1999); Banuelos v. McFarland, 41 F.3d 232, 235

(5th Cir. 1995); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Rather, a

showing of deliberate indifference for purposes of the Eighth Amendment requires

the prisoner to show that prison officials “refused to treat him, ignored his

complaints, intentionally treated him incorrectly, or engaged in any similar conduct

that would clearly evince a wanton disregard for any serious medical needs.”

Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). The Fifth Circuit has defined a

“serious medical need” as “one for which treatment has been recommended or for

which the need is so apparent that even laymen would recognize that care is

required.” Gobert, 463 F.3d at 345 n.12.

Here, Smith contends that he “is being denied medically necessary treatment

for her gender dysphoria, including gender confirmation surgery (‘GCS’), permanent

hair removal, and social transition treatment, causing her ongoing and significant

harm.” (Dkt. No. 1 at 1; see id. at 26.) Smith argues that despite knowing since 2017

that Smith is a transgender woman, various Defendants “have consistently denied

her adequate treatment, housed her in facilities for men, and refused her requests to

be transferred to a women’s prison.” (Id. at 1.) According to Smith, the denial of

this “necessary medical treatment to Ms. Smith constitutes deliberate indifference to

a serious medical need in violation of the Eighth Amendment.” (Id. at 27.)

Smith has not plausibly alleged that any Defendant was deliberately

indifferent to his serious medical needs. A review of Smith’s allegations and verified

MJQ responses show that the BOP confirmed Smith’s gender dysphoria diagnosis in

2017, as Smith acknowledges, and that Smith has received medical treatment for

gender dysphoria, including hormone therapy, placement in a transgender support

group, and some psychological counseling, from the BOP since 2017. (See Dkt. No.

1 at 15-16; Dkt. No. 13 at 1-2, 4-8, 31-43, 49.) Smith’s disagreement and

dissatisfaction with the extent of the treatment for gender dysphoria that he has

received while incarcerated because it does not include his preferred course of

treatment is not grounds for a medical indifference claim violative of the Eighth

Amendment. See Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018). Rather,

“only those deprivations denying the minimal civilized measure of life’s necessities

are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson

v. Seiter, 501 U.S. 294, 298 (1991) (cleaned up).

Smith has not shown that GCS, permanent hair removal, and confinement in

a women’s prison facility constitute such necessities. None of Smith’s allegations or

the documents provided in response to the Court’s MJQs show that any of Smith’s

medical providers—either prior to or during incarceration—identified, much less

prescribed, the treatment Smith seeks as medically necessary or otherwise. Further,

as to Smith’s desired GCS treatment, the Fifth Circuit has recently reconfirmed that

“there remains ‘significant disagreement within the medical community’ about

whether sex-reassignment surgery is an ‘effective treatment for gender dysphoria.’”

Haverkamp v. Linthicum, 152 F.4th 618, 625 (5th Cir. 2025) (quoting Gibson v. Collier,

920 F.3d 212, 223 (5th Cir. 2019)); see also Clark v. Valleta, 157 F.4th 201, 213-17 (2d

Cir. 2025) (discussing “the absence of clearly established law supporting [transgender

prisoner’s] gender-dysphoria claims.”). Even the primary resource on which Smith

relies in the complaint—the World Professional Association for Transgender

Health’s (“WPATH”) published Standards of Care for the Health of Transexual,

Transgender, and Gender Nonconforming People—maintains, according to Smith,

that the “particular course of medical treatment [for gender dysphoria] varies based

on the individualized needs of the person.”3 (See Dkt. No. 1 at 9-12.)

When, as here, “a genuine debate exists within the medical community about

the necessity or efficacy” of a particular treatment, there “is no intentional or wanton

deprivation of care” under the Eighth Amendment. Gibson, 920 F.3d at 220; see also

Clark v. LeBlanc, No. 19-00512-BAJ-SDJ, 2023 WL 2655725, at *10-11 (M.D. La.

Mar. 27, 2023) (taking judicial notice of the existence of a genuine debate “as to the

medical necessity of social transitioning to [gender dysphoria] treatment”).

Likewise, despite Smith’s contention that a transfer or assignment to a women’s

prison facility is a medically necessary treatment for his gender dysphoria, “the

decision to send an inmate to a facility to receive further treatment is analogous to

the decision to provide further treatment, which is a ‘classic example of a matter for

medical judgment’ that does not constitute deliberate indifference.” Little v. Stern,

3 Although the WPATH Standards of Care advocate the effectiveness of certain

forms of treatment for some cases of gender dysphoria, the Fifth Circuit has concluded that

“the WPATH Standards of Care reflect not consensus, but merely one side in a sharply

contested medical debate over sex reassignment surgery.” Gibson, 920 F.3d at 221.

No. 1:24-CV-00059-BU, 2025 WL 4097394, at *17 (N.D. Tex. Dec. 30, 2025), rec.

adopted, 2026 WL 260423 (N.D. Tex. Jan. 30, 2026).

In short, Smith fails to plausibly allege that any of the named Defendants

“refused to treat him, ignored his complaints, intentionally treated him incorrectly,

or engaged in any similar conduct that would clearly evince a wanton disregard for

serious medical needs.” Johnson, 759 F.2d at 1238. As the Court has explained,

Smith in essence disagrees and is dissatisfied with the extent of the treatment he has

received for his gender dysphoria diagnosis while incarcerated, complaining that the

treatment should include a wider array of gender-dysphoria treatments. Such

disagreement or dissatisfaction with his medical treatment is not grounds for a

constitutional claim of medical indifference under Bivens. See Delaughter, 909 F.3d at

136. The Court therefore should dismiss with prejudice Smith’s Eighth Amendment

medical care claim under Bivens.4

2. Equal Protection and Failure to Protect

Smith’s Fifth Amendment equal protection claim and Eighth Amendment

failure-to-protect claim, although involving the same constitutional amendments as

Davis and Carlson, respectively, differ in meaningful ways from the issues in those

4 To the extent Smith sues Defendants BOP Transgender Executive Council, which

has since been renamed the Special Populations Oversight Committee, an unspecified BOP

Regional Office, and the BOP Central Office, for inadequate medical care in violation of the

Eighth Amendment, a Bivens action may not be brought against a federal agency, such as

the BOP, or subdivisions thereof. (See Dkt. No. 13-1 at 2); FDIC v. Meyer, 510 U.S. 471,

484-86 (1994); Moore v. United States Dep’t of Agric., 55 F.3d 991, 995 (5th Cir. 1995).

Accordingly, Smith has not alleged a viable Bivens claim against these Defendants, and any

such claim against them, to the extent asserted, should be dismissed with prejudice on this

additional basis.

cases recognizing an implied cause of action under Bivens, and they thereby present a

new Bivens context. See Hernandez v. Mesa, 589 U.S. 93, 103 (2020) (“A claim may

arise in a new context even if it is based on the same constitutional provision as a

claim in a case in which a damages remedy was previously recognized.”).

Specifically, as to Smith’s equal protection claim under the Fifth Amendment,

Smith alleges that “Defendants’ housing of Ms. Smith based on her ‘biological’ sex,

and not her gender identity, discriminates against her on the basis of her sex and

transgender status.” (Dkt. No. 1 at 28.) The factual allegations supporting this claim

are a far cry, and meaningfully differ, from the facts and circumstances in Davis,

which involved sex-based employment discrimination by a congressman against a

female congressional staffer. See Oliva, 973 F.3d at 442. Smith’s Fifth Amendment

equal protection claim therefore presents a new Bivens context.

As to Smith’s failure-to-protect claim, Smith alleges that Defendants violated

the Eighth Amendment by failing to protect him “from known and substantial risks

of serious harm from prison staff and other incarcerated persons as a transgender

woman in a men’s prison.” (Dkt. No. 1 at 30.) These allegations and the alleged

facts supporting same materially differ from the Eighth Amendment medical

indifference factual allegations and issues in Carlson; Smith’s failure-to-protect claim

therefore also presents a new Bivens context. See, e.g., Looper, 2023 WL 5814910, at

*2 (“Even though Carlson created a cause of action [under Bivens] for an asthmatic

prisoner’s Eighth Amendment failure to medicate claim, it did not create a cause of

action for a prisoner’s Eighth Amendment failure to protect or intervene claim.”).

Because both claims arise in a new Bivens context, the next step is to determine

“whether there are ‘special factors’ indicating that the Judiciary is at least arguably

less equipped than Congress to weigh the costs and benefits of allowing a damages

action to proceed.” Goldey, 606 U.S. at 944 (internal quotation marks omitted). The

salient “special factor” in this case is whether “there are alternative remedial

structures in place [because] that alone, like any special factor, is reason enough to

limit the power of the Judiciary to infer a new Bivens cause of action.” Egbert, 596

U.S. at 493 (internal quotation marks omitted). “The existence of such alternative

remedial procedures counsels against allowing Bivens suits even if such procedures

are not as effective as an individual damages remedy.” Goldey, 606 U.S. at 944-45

(quoting Egbert, 596 U.S. at 498) (cleaned up). “[T]he alternative relief necessary to

limit Bivens need not provide the exact same kind of relief Bivens would.” Oliva, 973

F.3d at 444.

The existence of the BOP’s Administrative Remedy Program demonstrates

that there is an alternative remedial structure in place; to the extent a federal prisoner

sustains injuries during incarceration, the Federal Torts Claims Act also provides an

avenue to relief. See 28 C.F.R. § 542.10(a) (enabling “inmate[s] to seek formal

review of an issue relating to any aspect of his/her own confinement.”); Watkins v.

Carter, No. 20-40234, 2021 WL 4533206, at *2 (5th Cir. Oct. 4, 2021) (unpublished).

Additionally, “the separation of powers is another special factor weighing against

extending Bivens because Congress has had the occasion to consider prisoner rights,

but has not legislated to extend the reach of Bivens.” Bush v. Watson, No. 1:18-cv-595,

2022 WL 2072227, at *3 (E.D. Tex. Apr. 11, 2022) (citing Watkins v. Three Admin.

Remedy Coordinators of BOP, 998 F.3d 682, 685-86 (5th Cir. 2021)); see also Oliva, 973

F.3d at 444 (“This ‘silence of Congress is relevant’ to the special-factors inquiry.”).

These special factors counsel against the extension of Bivens here. See Watkins, 2021

WL 4533206, at *2. Because Smith’s Fifth Amendment equal protection and Eighth

Amendment failure-to-protect claims present new contexts under Bivens, the Court

should dismiss them with prejudice.

B. APA

Smith purports to “make[] claims against the officers in their official capacity

under 5 U.S.C. § 702” of the APA for alleged violations of his Fifth and Eighth

Amendment rights; Defendant BOP is also included among the allegations on which

the APA claims appear to be premised. (Dkt. No. 11 at 2; see also Dkt. No. 1 at 26-

29.)

The APA provides that “[a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Only

“[a]gency action made reviewable by statute and final agency action for which there

is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C.

§ 704. The APA does not apply when: “(1) statutes preclude judicial review; or (2)

agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a); see also

Hammonds v. Fed. Bureau of Prisons, No. 4-11-CV-578-Y, 2012 WL 759886, at *2

(N.D. Tex. Mar. 7, 2012).

Here, Smith does not articulate or explain any claim in the context of the APA

aside from generally citing § 702 of the APA as the legal basis for his claims against

the BOP officer Defendants in their official capacities. (See Dkt. No. 11 at 2.) The

Court notes, however, that in his first and second grounds for relief, Smith alleges in

part that the implementation and enforcement of the BOP’s “‘biological sex’ based

housing policy” violates his Eighth and Fifth Amendment rights, respectively. (Dkt.

No. 1 at 27-28.) The policy on which Smith premises his allegations is BOP Program

Statement 5200.04—the BOP’s Transgender Offender Manual—as subsequently

modified by Change Notice 5200.04 CN-1 thereto. (See Dkt. No. 1 at 18-21, 27-28.)

Smith believes that following the implementation of the change notice to Program

Statement 5200.04 in 2018, “Defendants have assigned transgender prisoners to

facilities solely based on their sex assigned at birth and have failed to transfer any

transgender prisoners to facilities that accord with their gender identity, rather than

their sex assigned at birth.” (Id. at 20-21.)

Smith’s allegations challenge the BOP’s determination of his place of

imprisonment and the denial of his requests for a transfer to a women’s BOP facility,

purportedly under Program Statement 5200.04. The BOP has the statutory authority

to “designate the place of the prisoner’s imprisonment,” and it “may designate any

available penal or correctional facility that meets minimum standards of health and

habitability established by the [BOP.]” 18 U.S.C. § 3621(b). The provisions of the

APA expressly “do not apply to the making of any determination, decision, or

order” under the ‘Imprisonment’ subchapter of Title 18 of the United States Code, of

which § 3621(b) is a part. 18 U.S.C. § 3625; see also Llewlyn v. Friend, No. 5:20-CV-

00235-H, 2022 WL 594139, at *2-3 (N.D. Tex. Feb. 28, 2022). Additionally, BOP

program statements are generally “internal agency guidelines, rather than published

regulations subject to the ‘rigors of the Administrative Procedure Act,’ and therefore

‘do not create entitlements enforceable under the APA.’” Bitman v. Johnson, No.

5:24-CV-154-RWS-JBB, 2026 WL 1286845, at *6 (E.D. Tex. May 11, 2026) (quoting

Lewandowski v. Bureau of Prisons, No. 19-15710 (RBK) (AMD), 2021 WL 5937671, at

*4 (D.N.J. Dec. 16, 2021)); see also Driever v. United States, No. 19-1807 (TJK), 2020

WL 6135036, at *9 (D.D.C. Oct. 19, 2020) (finding that Program Statement 5200.04

was “not subject to the APA’s rulemaking provisions because [it was a] statement[]

of internal policy.”).

Accordingly, Smith has failed to show that Program Statement 5200.04, as

modified by the change notice, is subject to challenge under the APA. Because

Smith has not alleged a viable APA claim against the BOP or any of the individual

Defendants in their official capacities, the Court should dismiss Smith’s claims under

the APA with prejudice.5

5 Program Statement 5200.04 is no longer among the current program statements on

the BOP’s website. See BOP Policies, https://www.bop.gov/PublicInfo/execute/

policysearch?todo=query (last visited June 26, 2026). To the extent Smith’s APA claims

and request for injunctive and declaratory relief are premised on Program Statement

5200.04 and its corresponding change notice, such claims now appear to be moot.

C. United States Constitution

In the complaint, Smith states that he brings this action “directly under the

Constitution” for violations of the Fifth and Eighth Amendments. (Dkt. No. 1 at 3.)

Even if the Court assumes that Smith’s assertion was not superseded by Smith’s

MJQ responses, wherein Smith identifies Bivens and the APA as his legal bases for

relief, the Constitution does not provide a private cause of action. See, e.g., Kermode

v. Farley, Nos. 3:09cv584-DPJ-FKB, 3:13cv197-DPJ-FKB, 2014 WL 12704991, at *5

(S.D. Miss. Feb. 14, 2014) (“The federal claims based directly on the United States

Constitution fail because the Constitution does not create a private cause of

action.”). Accordingly, to the extent Smith asserts any claims or seeks relief “directly

under the Constitution,” the Court should dismiss such claims with prejudice.

IV. LEAVE TO AMEND

Ordinarily, “a pro se litigant should be offered an opportunity to amend his

complaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir.

2009). Leave to amend is not necessary, however, when the plaintiff has already

pled his best case. See Wiggins v. La. State Univ.—Health Care Servs. Div., 710 F. App’x

625, 627 (5th Cir. 2017). A verified questionnaire response allows a plaintiff to plead

his best case and is a valid way for a pro se plaintiff to amend the complaint. See

Nixon v. Abbott, 589 F. App’x 279, 279 (5th Cir. 2015) (“Contrary to [the plaintiff’s]

argument, he was given the opportunity to amend his complaint in his responses to

the magistrate judge’s questionnaire, which has been recognized as an acceptable

method for a pro se litigant to develop the factual basis for his complaint.”). Because

Smith has already responded to two MJQs to clarify his claims, he has pled his best

case and further leave to amend is not warranted. Further, based on the most

deferential review of Smith’s complaint and MJQ responses, it is unlikely that, given

the opportunity, Smith could allege viable legal claims against Defendants. Under

these circumstances, the Court concludes that granting leave to amend would be

futile and cause needless delay.6

V. RECOMMENDATION

The Court should DISMISS the Complaint with Jury Demand, received on

October 26, 2023 and transferred to this Court on January 16, 2024 (Dkt. No. 1),

with prejudice under 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) for failure to state a

claim upon which relief may be granted. The Court should count this dismissal as a

“strike” or “prior occasion” within the meaning of 28 U.S.C. § 1915(g).7

6 Even so, the 14-day objection period will permit Smith the opportunity to proffer

factual or legal bases, if any, to cure the deficiencies in his claims outlined herein.

7 Section 1915(g), which is commonly known as the “three-strikes” provision,

provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action or

appeal in a court of the United States that was dismissed on the grounds that

it is frivolous, malicious, or fails to state a claim upon which relief may be

granted, unless the prisoner is under imminent danger of serious physical

injury.

SO RECOMMENDED on June 29, 2026.

nw

BRIXN McKAY

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the

manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,

an objection must identify the finding or recommendation to which objection is

made, state the basis for the objection, and indicate the place in the magistrate

judge’s report and recommendation where the disputed determination is found. An

objection that merely incorporates by reference or refers to the briefing before the

magistrate judge is not specific. Failure to file specific written objections will bar the

aggrieved party from appealing the factual findings and legal conclusions of the

magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,

1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections to 14 days).

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