Leroy Ellis v. Bureau of Prisons , 239 F. App'x 466 ( 2007 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                    FILED
    ________________________         U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    March 15, 2007
    No. 06-10912                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 05-02846-CV-CAM-1
    LEROY ELLIS,
    Plaintiff-Appellant,
    versus
    BUREAU OF PRISONS,
    U.S.P. ATLANTA,
    Records Department,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (March 15, 2007)
    Before TJOFLAT, BIRCH and HULL, Circuit Judges.
    PER CURIAM:
    Leroy Ellis, a federal prisoner proceeding pro se, appeals the district court’s
    dismissal, under 28 U.S.C. § 1915A, of his civil complaint seeking punitive and
    compensatory damages for illegal confinement against the Federal Bureau of
    Prisons (“BOP”), United States Penitentiary in Atlanta, Records Department. We
    AFFIRM.
    I. BACKGROUND
    Ellis filed a pro se civil action against the BOP, United States Penitentiary in
    Atlanta, Records Department, and stated that he was invoking the district court’s
    jurisdiction under 
    28 U.S.C. § 1331
    . Ellis alleged that the BOP held him for three
    years beyond his correct release date. He contends that, while he was in state
    custody awaiting sentencing on state charges in September 1992, he was taken into
    federal custody pursuant to a federal indictment. The district judge sentenced Ellis
    to 137 months of imprisonment on November 18, 1992, and, on November 24,
    1992, he received a seven-year sentence for the state charges. Ellis argues that his
    state sentence was to run concurrently with his federal sentence. He also alleges
    that he was committed to federal custody until February 17, 1994, when the BOP
    transferred him to state custody after realizing he had been erroneously designated
    as a federal prisoner. Ellis argues that, when he completed his state sentence on
    July 2, 1996, the BOP erroneously determined that his federal sentence began on
    2
    that date and did not grant him credit for the prior time that he had spent in federal
    custody. Consequently, he contends that his federal sentence was increased by
    fifteen months. R1-1 at 6. Ellis alleges that he previously filed two actions raising
    his claims in federal court but that he was denied relief in both. Ellis sought
    compensatory damages of $1,000,000 and punitive damages of $1,000,000. In
    support of his claim, Ellis attached the docket sheet from his federal conviction,
    which indicates that the execution of his sentence began on January 10, 1993, and
    the transfer order of February 17, 1994. R1-1, attached exhibits.
    The district judge, acting sua sponte, dismissed Ellis’s action as frivolous
    under 28 U.S.C. § 1915A. The judge noted that Ellis’s action initially was
    construed as a habeas petition under 
    28 U.S.C. § 2241
     and ordered that the action
    be converted into a civil rights action under 
    28 U.S.C. § 1331
     and Bivens v. Six
    Unknown Named Agents of the Federal Bureau of Narcotics, 
    403 U.S. 388
    , 
    91 S.Ct. 1999
     (1971), because Ellis invoked the district court’s jurisdiction under
    § 1331 and sought only damages. The district judge then granted Ellis in forma
    pauperis status and screened his action pursuant to § 1915A. The judge took notice
    that the Middle District of Pennsylvania, in denying a § 2241 petition brought by
    Ellis raising the same claim, concluded that any time Ellis had spent in federal
    custody erroneously was credited to his state sentence and that Ellis was not
    3
    entitled to have his state and federal sentences run concurrently. R1-3 at 4; see
    Ellis v. True, No. 4:CV-97-1511 (M.D. Pa. Dec. 30, 1997), aff’d 
    164 F.3d 621
     (3d
    Cir. 1998). The district judge also found that Ellis raised the same claim in at least
    two successive § 2241 petitions that were both denied. R1-3 at 4; see Ellis v.
    United States, No. 5:02-cv-165 (M.D. Fla. Aug. 12, 2002); Ellis v. Ashcroft, No.
    1:04-cv-00015 (N.D. Fla. Sept. 16, 2005). The judge concluded that Ellis’s claim
    was “'indisputably meritless'” because he failed to show that his sentence was
    invalid or called into question and that, in fact, his challenges to his sentence had
    been “soundly rejected.” R1-3 at 5. Accordingly, the district judge dismissed
    Ellis’s action as frivolous.
    On appeal, Ellis argues that the district judge erred by characterizing his
    claim as a Bivens action. He contends that the issue is the BOP’s error in its
    designation process, not the unconstitutionality of his confinement. Ellis also
    argues that the district judge did not properly examine the record before
    concluding that his claim was without merit because he provided sufficient support
    for his claim. The government did not respond.
    II. DISCUSSION
    Under § 1915A, a district judge must review a prisoner’s civil complaint
    against a governmental entity or an officer or employee of a governmental entity to
    4
    identify cognizable claims or to dismiss the complaint, or any portion of the
    complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon
    which relief may be granted.” 28 U.S.C. § 1915A(a), (b)(1). Similarly, a district
    judge must dismiss an appeal taken in forma pauperis if, at any time, the judge
    determines that the action is “frivolous,” “malicious,” or “fails to state a claim on
    which relief may be granted.” 
    28 U.S.C. § 1915
    (e)(2)(B)(i)-(ii). Because we
    review a district judge’s decision to dismiss a complaint as frivolous under §
    1915(e)(2)(B)(i) for an abuse of discretion, Napier v. Preslicka, 
    314 F.3d 528
    , 531
    (11th Cir. 2002), we will review a district judge’s dismissal of a complaint as
    frivolous under § 1915A for an abuse of discretion. See Bilal v. Driver, 
    251 F.3d 1346
    , 1349 (11th Cir. 2001) (stating that “[a] determination of frivolity is best left
    to the district court”); Rice v. Baker, 
    181 Fed. Appx. 902
    , 903 (11th Cir. 2006) (per
    curiam) (reviewing the district judge’s dismissal of a complaint as frivolous under
    § 1915A for an abuse of discretion). An action is frivolous if it is “without
    arguable merit either in law or fact.” Bilal, 
    251 F.3d at 1349
    .
    Bivens established the availability of a cause of action for monetary
    damages against federal officials in their individual capacities based on a violation
    of a federal constitutional right. 
    403 U.S. at 395-97
    , 
    91 S.Ct. at 2004-05
    . Bivens
    involved alleged violations of the Fourth Amendment, but the Supreme Court has
    5
    extended Bivens to actions alleging violations of the Due Process Clause of the
    Fifth Amendment. Davis v. Passman, 
    442 U.S. 228
    , 242-44, 
    99 S.Ct. 2264
    , 2275-
    76 (1979). Bivens actions may not be asserted against federal agencies. Fed.
    Deposit Ins. Corp. v. Meyer, 
    510 U.S. 471
    , 486, 
    114 S.Ct. 996
    , 1005-06 (1994).
    The Supreme Court has held that
    in order to recover damages for allegedly unconstitutional conviction
    or imprisonment, or for other harm caused by actions whose
    unlawfulness would render a conviction or sentence invalid, a § 1983
    plaintiff must prove that the conviction or sentence has been reversed
    on direct appeal, expunged by executive order, declared invalid by a
    state tribunal authorized to make such determination, or called into
    question by a federal court's issuance of a writ of habeas corpus . . . .
    Heck v. Humphrey, 
    512 U.S. 477
    , 486-87, 
    114 S.Ct. 2364
    , 2372 (1994). Thus, if
    entering judgment in favor of the prisoner “would necessarily imply the invalidity
    of [the prisoner’s] conviction or sentence[,]” a district judge must dismiss the
    complaint unless the prisoner demonstrates that the conviction or sentence has
    already been invalidated. 
    Id. at 487
    , 114 S.Ct. at 2372. We have held that Heck
    applies with equal force in a Bivens action filed by a federal prisoner. Abella v.
    Rubino, 
    63 F.3d 1063
    , 1065 (11th Cir. 1995) (per curiam).
    As an initial matter, the district court properly considered Ellis’s claim under
    Bivens. In his complaint, Ellis sought monetary damages from individuals in the
    Records Department of the Bureau of Prisons’s federal penitentiary in Atlanta for
    6
    committing an error that resulted in illegal confinement in violation of his due
    process rights. The district judge correctly found that Bivens is the appropriate
    cause of action for such a claim. See Davis, 
    442 U.S. at 242-44
    , 
    99 S.Ct. at
    2275-
    76. To the extent that Ellis argues he sought monetary damages against the BOP
    itself, a federal agency, such a claim is not cognizable under Bivens, see Meyer,
    
    510 U.S. at 486
    , 114 S.Ct. at 1005-06, and Ellis did not meet the requirements of
    raising a claim for monetary damages against the federal government under the
    Federal Tort Claims Act, 
    28 U.S.C. §§ 1346
    , 2675(a).1
    The district judge did not abuse his discretion by concluding that Ellis’s
    Bivens claim was without arguable merit. Ellis claims that he has remained in
    federal custody beyond his release date because his federal sentence should have
    run concurrently with a state sentence that he also received and because the BOP
    failed to credit his federal sentence with time he spent in a federal prison during
    which he should have been in a state prison. A ruling in favor of Ellis, concluding
    that individuals in the BOP were liable for illegally confining him, would
    necessarily imply that his federal sentence was invalid on the grounds that it should
    1
    To the extent that Ellis attempts to bring a claim for monetary damages against the BOP
    for the actions of its employees, such a claim should be brought under the Federal Tort Claims Act
    (“FTCA”), 
    28 U.S.C. §§ 1346
    , 2671 et seq. For a district court to have jurisdiction over an FTCA
    action, a plaintiff must first show that he presented his claim to the agency and that the agency
    denied it in writing. 
    28 U.S.C. § 2675
    (a); Burchfield v. United States, 
    168 F.3d 1252
    , 1254-55 (11th
    Cir. 1999). Because Ellis presented no evidence that he met this requirement, the district court did
    not have jurisdiction over any claim for monetary damages against the BOP as an agency.
    7
    have run concurrently with his state sentence or because he did not receive proper
    credit for time previously served. Therefore, to succeed on his Bivens claim, Ellis
    must first prove that his sentence has been invalidated or at least “called into
    question.” Heck, 
    512 U.S. at 487
    , 114 S.Ct. at 2372.
    Ellis has not made such a showing; instead, he admits that his previous
    challenges to his sentence have failed. Ellis raised the same arguments regarding
    his sentence to various district courts through 
    28 U.S.C. § 2241
     habeas petitions,
    and each district court rejected his arguments. Ellis v. True, No. 4:CV-97-1511
    (M.D. Pa. Dec. 30, 1997); Ellis v. United States, No. 5:02-cv-165 (M.D. Fla. Aug.
    12, 2002); Ellis v. Ashcroft, No. 1:04-cv-00015 (N.D. Fla. Sept. 16, 2005). One
    district judge specifically found that Ellis was not entitled to have his sentences run
    concurrently or to receive credit on his federal sentence for the time he served in
    federal prison because the time was credited to his state sentence. Ellis, No. 4:CV-
    97-1511, at 7. In view of these prior rulings and the absence of any evidence that
    his sentence has been invalidated or called into question, Ellis cannot meet the
    requirements of Heck. Therefore, the district judge did not abuse his discretion by
    concluding that Ellis’s claim was frivolous.
    8
    III. CONCLUSION
    Ellis argues on appeal that the district judge erroneously treated his
    complaint as a Bivens action and, consequently, concluded that his claim had no
    merit. As we have explained, the judge correctly analyzed Ellis's allegations.
    Accordingly, the district judge's dismissal of Ellis's complaint is
    AFFIRMED.
    9