The opinion
Case: 19-60299 Document: 00515811111 Page: 1 Date Filed: 04/07/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 7, 2021
No. 19-60299 Lyle W. Cayce
Summary Calendar Clerk
Carl R. Brown,
Plaintiff—Appellant,
versus
T. Brown; C. Trotter; C. Murtaugh; O. Elery; Mr.
Denise, Supervisor,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-830
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Carl R. Brown, former federal prisoner # 39138-044, appeals the
dismissal of his suit against five federal prison employees for violating his
Fifth Amendment right to equal protection by discriminating against him on
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60299 Document: 00515811111 Page: 2 Date Filed: 04/07/2021
No. 19-60299
the basis of his religion, Hebrew Israelite, at his job in the prison. The district
court granted the defendants’ motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) and 12(b)(1), concluding that Brown’s claim presented a
new context for a claim under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and that special factors
counseled against extending Bivens to imply a remedy for a prisoner’s
employment discrimination claim against his federal jailers.
Brown raises five issues on appeal. “We review a dismissal on the
pleadings under Rules 12(b)(1) or 12(b)(6) de novo, accepting all well-
pleaded facts as true and viewing those facts in the light most favorable to the
plaintiffs.” Haddock v. Tarrant Cnty., Texas, 986 F.3d 893, 897 (5th Cir.
2021) (internal quotation marks and citation omitted); Stratta v. Roe, 961
F.3d 340, 349 (5th Cir. 2020).
First, Brown argues that the Prisoner Litigation Reform Act (PLRA)
is unconstitutional because it permitted the district court to deny his claim
for damages due to his lack of physical injury. Brown misunderstands the
district court’s ruling. The district court did not “concede[]” that Brown
stated a valid claim for relief, as he asserts; it concluded that he did not state
a claim for relief under Bivens.
It is this decision, the basis for the district court’s dismissal, that
Brown challenges second. He argues that he stated a cognizable claim for
relief based on the defendants’ violating his right to be free from
discrimination based on his religion. However, the district court concluded
that his case presented a Bivens claim in a new context, and it listed special
factors, including the availability of the administrative remedy program, the
limitations imposed by the PLRA, and Congress’s silence on prisoner
employment claims and exclusion of religious discrimination claims under
Title VII of the Civil Rights Act of 1964. Because Brown does not challenge
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these conclusions, we consider these issues to be abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Brown also argues
that he has a constitutionally protected interest in freedom from
discrimination based on 28 C.F.R. § 551.90. However, Brown did not argue
in the district court that he had a private right of action against the defendants
based on § 551.90, and we will not address it now. Ball v. LeBlanc, 792 F.3d
584, 596 n.8 (5th Cir. 2015).
Third, Brown complains that the district court did not allow him to
amend his complaint to seek nominal or punitive damages. “Generally a
district court errs in dismissing a pro se complaint for failure to state a claim
under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.”
Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020) (internal
quotation marks and citation omitted). “Although leave to amend should be
freely give[n] ... when justice so requires, a district court may refuse leave to
amend if the filing of the amended complaint would be futile, i.e., if the
complaint as amended would be subject to dismissal.” Varela v. Gonzales,
773 F.3d 704, 707 (5th Cir. 2014) (internal quotation marks and citation
omitted). Because the district court determined that amendment would be
futile, we review that decision de novo. Id. We conclude that, as Brown did
not state a claim for relief under Bivens, the district court did not err by
concluding that amending his complaint to request different unavailable
damages would have been futile. See id.
Fourth, Brown argues that the district court should have construed his
complaint against the defendants in their individual capacities. The district
court decided that, to the extent Brown intended to sue the defendants in
their official capacities, the claims were barred by the doctrine of sovereign
immunity. Then, it construed his claim against the defendants in their
individual capacities and considered the questions instructed by the Supreme
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No. 19-60299
Court in Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017), ultimately declining to
extend Bivens relief to this novel context. Thus, this claim lacks merit.
Last, Brown argues that the district court should have permitted him
to subpoena the defendants and should have held an evidentiary hearing.
However, a district court does not err by dismissing a complaint without
permitting discovery if the complaint fails to allege facts sufficient to suggest
that discovery would reveal evidence in support of a viable claim. See Quinn
v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017). Furthermore, there is no
requirement that a district court conduct a hearing before dismissal. Alderson
v. Concordia Par. Corr. Facility, 848 F.3d 415, 423 n.10 (5th Cir. 2017). As the
district court accepted Brown’s factual allegations and Brown has not
explained how the lack of a hearing prevented him from adequately
presenting his claim, any error in the district court’s failing to hold a hearing
was harmless. See Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009).
In light of the foregoing, the judgment of the district court is
AFFIRMED.
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