Douglas Earl Nalls v. Bureau of Prisons USA , 359 F. App'x 99 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10847
DECEMBER 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-23127-CV-CMA
DOUGLAS EARL NALLS,
Sui Juris Sovereign, One (office) of We
the People of the Republic of Florida, a
State,
Plaintiff-Appellant,
versus
BUREAU OF PRISONS OF UNITED STATES OF AMERICA,
ATTORNEY GENERAL OF THE UNITED STATES,
Eric Holder, Jr.,
DIRECTOR OF FEDERAL BUREAU OF PRISONS,
Harley G. Lappin,
LEONARD GALLOWAY,
Counselor,
BRUCE PEARSON,
Warden, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 29, 2009)
Before EDMONDSON, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Douglas Earl Nalls, proceeding pro se, appeals the dismissal with prejudice
of his first amended complaint -- filed pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 91 S. Ct. 1999 (1971) -- for failure to state a
claim, Fed.R.Civ.P. 12(b)(6). No reversible error has been shown; we affirm.
We review de novo a district court’s dismissal for failure to state a claim
pursuant to Rule 12(b)(6). Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir.
2004). And “[w]e accept the facts of the complaint as true and view them in the
light most favorable to the nonmoving party.” Id. In addition, we liberally
construe pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
Nalls was convicted of fraud offenses and imprisoned at the Federal
Correctional Complex (“FCC”) in Coleman, Florida. He previously had been
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convicted of child abuse and sexual offenses in Maryland. After Nalls served his
sentence for the federal charges, the Bureau of Prisons (“BOP”) -- pursuant to 18
U.S.C. § 4042(c) -- notified state and local officials in Florida that Nalls was being
released and that he was required to register as a sex offender.
In his first amended complaint, Nalls alleged that his name, likeness, and
other data inappropriately were placed on sex offender lists in violation of his
constitutional rights. Nalls alleged that the offender list amounted to a bill of
attainder and that application of section 4042(c) to him violated ex post facto
principles, due process, and equal protection. He filed his complaint against these
defendants: (1) the United States; (2) the United States Attorney General; (3) the
BOP; (4) the director of the BOP; (5) the warden of FCC Coleman; (6) a case
manager at FCC Coleman; and (7) a counselor at FCC Coleman. Nalls sought
money damages and injunctive relief.
The district court, adopting the magistrate judge’s recommendation, granted
defendants’ motion to dismiss because sovereign immunity prevented Nalls from
maintaining an action against the United States government for money damages.
To the extent Nalls sought to sue defendants in their individual capacities, the court
concluded that Nalls’s action was barred because all acts he alleged by defendants
were undertaken in their official capacities. The court also rejected Nalls’s bill of
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attainder, ex post facto, and equal protection claims on the merits. On appeal,
Nalls argues that he can maintain his action against individual defendants pursuant
to Bivens and repeats his arguments about constitutional violations.
“Under settled principles of sovereign immunity, the United States, as
sovereign, is immune from suit, save as it consents to be sued.” United States v.
Dalm, 110 S. Ct. 1361, 1368 (1990) (internal quotations and citations omitted).
Official capacity suits are, in reality, suits against the official’s agency/entity.
Kentucky v. Graham, 105 S. Ct. 3099, 3105 (1985). Here, the United States has not
consented to suit: Congress explicitly has maintained sovereign immunity for acts
taken in compliance with the sexual offender notification requirements of section
4042(c). See 18 U.S.C. § 4042(c)(5). Thus, sovereign immunity bars Nalls’s
claims against the United States, the BOP, and the individual defendants in their
official capacities.1
Nalls also attempted to maintain a Bivens action against defendants in their
individual capacities. We conclude that Nalls’s Bivens claim fails. In Bivens, the
1
The district court noted correctly that Nalls’s request for injunctive and declaratory relief
became moot during the district court proceedings: the state of Florida notified Nalls that it had
removed his name from the Florida sexual offender registry because neither Federal nor Florida
law required Nalls still to be registered as a sex offender. See Adler v. Duval County Sch. Bd.,
112 F.3d 1475, 1477 (11th Cir. 1997) (“[w]hen the threat of future harm dissipates, the
plaintiff’s claims for equitable relief become moot because the plaintiff no longer needs
protection from future injury”). This removal resulted from a change in federal law: the Sex
Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16911 et seq.
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Supreme Court concluded that injured plaintiffs can bring a private cause of action
for damages against federal officers based on violations of constitutional rights.
Behrens v. Regier, 422 F.3d 1255, 1263 n.15 (11th Cir. 2005). But vicarious
liability is inapplicable to Bivens; so “a plaintiff must plead that each Government-
official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Nalls alleged no
personal misconduct on the part of the Attorney General, the BOP director, and the
warden of FCC Coleman. Thus, he did not show how these defendants violated his
constitutional rights and stated no Bivens claim against them.
Nalls made direct allegations only against the case manager and counselor at
FCC Coleman: that these defendants threatened Nalls into signing his sexual-
offender designation. But qualified immunity protects the case manager and
counselor from suit. “[Q]ualified immunity provides that government officials
performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Case v.
Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009) (internal quotation and citation
omitted). The case manager and counselor were merely performing their job duties
when they requested Nalls to sign a form that designated him a sexual offender.
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This act violated no clearly established constitutional right; and qualified immunity
bars Nalls’s suit against these two defendants.2
AFFIRMED.3
2
Because we decide Nalls’s case on immunity grounds, we decline to discuss the merits
of his constitutional arguments.
3
Nalls raises the issue of stare decisis. But the out-of-circuit district court decision to
which Nalls cites has no binding precedential effect on the district court or this Court. See
Fishman & Tobin, Inc. v. Tropical Shipping & Constr. Co., 240 F.3d 956, 965 n.14 (11th Cir.
2001) (explaining that stare decisis only applies “in situations where a court is bound by its own
controlling decisions or that of courts to which it is obedient”).
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