[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14228 ELEVENTH CIRCUIT
JAN 09, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-20009-CV-PAS
M.D. DOUGLAS E. NALLS,
Sui Juris,
Plaintiff-Appellant,
versus
COLEMAN LOW FEDERAL INSTITUTION,
Unknown Correctional Officer, Unknown Medical
Officers, Warden and Administrative Personnel,
BUREAU OF PRISONS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 9, 2009)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Douglas E. Nalls, M.D., proceeding pro se, appeals the district court’s order
granting the defendants’ motion for summary judgment and denying his motion
for summary judgment as to his Bivens1 action. On appeal, Nalls raises two issues:
(1) the district court was not authorized to convert the defendants’ motion to
dismiss into a motion for summary judgment, and (2) the district court erred by
granting summary judgment to the defendants on Nalls’s Bivens claim for lack of
subject matter jurisdiction. We address each issue in turn. After review, we
affirm in part and reverse and remand in part.2
I.
Nalls contends the district court erred by converting the defendants’ motion
to dismiss into a motion for summary judgment based on Federal Tort Claims Act
(FTCA) claim forms attached to the defendants’ motion to dismiss. Nalls argues
he filed a Bivens action, not a FTCA claim, and thus the extrinsic evidence was
irrelevant and should not have been considered.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 91 S. Ct. 1999 (1971).
2
We also grant Nalls’s motion for leave to file reply brief out of time.
2
When matters outside the pleadings are presented to and not excluded by the
district court in a Federal Rule of Civil Procedure 12(b)(6) motion, the motion
must be treated as one for summary judgment under Rule 56, and all parties must
be given a reasonable opportunity to present all the material that is pertinent to the
motion. Fed. R. Civ. P. 12(d).
The defendants attached three exhibits to their motion to dismiss, and, as a
result, the district court was authorized to convert the defendants’ motion to
dismiss into a motion for summary judgment.
II.
Nalls next argues the district court erred by granting summary judgment to
the defendants on his Bivens action for lack of subject matter jurisdiction. The
district court dismissed the Bivens claims against the United States and the Bureau
of Prisons based on sovereign immunity. It also dismissed the Bivens claims
against an unknown correctional officer, unknown medical officers, and the
warden and administrative personnel of Coleman Low Federal Institution,
concluding Nalls’s complaint gave no indication of his intention to sue these
defendants in their individual capacities and Bivens claims were not applicable to
federal officers sued in their official capacities.
3
Nalls contends the district court held him, as a pro se plaintiff, to the
standard of a bar licensed attorney and erred by failing to instruct him on how to
amend his pleadings to state a claim upon which relief may be granted. He
maintains the government cannot assert sovereign immunity as a defense to a
Bivens action, because sovereign immunity was not at issue in Bivens, and his
factual allegations sufficiently show a violation of his constitutional rights
authorizing the district court to address his complaint.
We review de novo a district court’s grant of summary judgment. Skop v.
City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment is
appropriate when “there is no genuine issue as to any material fact and . . . the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In
making this determination, we ‘view the evidence and all factual inferences
therefrom in the light most favorable to the non-moving party, and resolve all
reasonable doubts about the facts in favor of the non-movant.’” Skop, 485 F.3d at
1136 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004)).
The availability of a cause of action against federal officials in their
individual capacities for violations of federal constitutional rights was established
in Bivens, 91 S. Ct. at 2004–05. Bivens claims can be brought against federal
officers in their individual capacities only; they do not apply to federal officers
4
acting in their official capacities. See Corr. Servs. Corp. v. Malesko, 122 S. Ct.
515, 521–22 (2001). Moreover, Bivens does not extend to allow causes of action
against federal agencies. F.D.I.C. v. Meyer, 114 S. Ct. 996, 1005–06 (1994).
“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “a pro se litigant does not
escape the essential burden under summary judgment standards of establishing
that there is a genuine issue as to a fact material to his case in order to avert
summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).
Although we show leniency to pro se litigants, we will not serve as de facto
counsel or “rewrite an otherwise deficient pleading in order to sustain an action.”
GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).
As an initial matter, the district court lacked subject matter jurisdiction over
Nalls’s claims against the Bureau of Prisons because Bivens does not extend to
federal agencies, see Meyer, 114 S. Ct. at 1005–06, and against the United States
because it is “immune to suit,” see Bivens, 91 S. Ct. at 2012 (Harlan, J., concurring
in the judgment). Accordingly, the district court did not err by granting summary
judgment to the Bureau of Prisons and the United States.
5
The district court, however, erroneously granted summary judgment to the
individual defendants because they are not entitled to sovereign immunity. Nalls
never asserted in his complaint whether he brought his claims against federal
officials in their official capacities. The district court thus failed to liberally
construe Nalls’s complaint in his favor when it read the complaint to be a Bivens
action against federal officials in their official capacities. If the district court had
liberally construed Nalls’s complaint, it would have found his claims to be against
the individual defendants in their individual capacities to conform to his Bivens
claim. See Tannenbaum, 148 F.3d at 1263. Accordingly, the district court had
subject matter jurisdiction over Nalls’s claims against the unknown correctional
officer, the unknown medical officers, and the warden and administrative
personnel.
Because sovereign immunity applies to the Bureau of Prisons, as a federal
agency, and to the United States, we affirm the district court’s grant of summary
judgment in favor of those parties. The district court, however, erred by granting
summary judgment to the unknown correctional officer, the unknown medical
officers, and the warden and administrative personnel because the court failed to
liberally construe Nalls’s complaint to be against the federal officers in their
6
individual capacities. Accordingly, we reverse the district court’s grant of
summary judgment in favor of the individual defendants.
AFFIRMED in part; REVERSED and REMANDED in part.
7