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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10655
Non-Argument Calendar
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D.C. Docket No. 2:17-cv-00350-WKW-DAB
DARRELL LAMAR MARSHALL,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
W. HAROLD ALBRITTON, III,
United States District Judge, in his official capacity,
MYRON H. THOMPSON,
United States District Judge, in his official capacity,
U.S. ATTORNEY'S OFFICE,
in their official capacity,
THE FEDERAL MEDICAL CENTER,
in their official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Alabama
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(March 4, 2019)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Darrell Marshall appeals pro se the sua sponte dismissal of his complaint. 28
U.S.C. § 1915(e)(2)(B). Marshall challenges the denial of his motion for the
magistrate judge to recuse and the treatment of his action as raising constitutional
claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Marshall also argues that the summary disposition
of his complaint violated his right to due process. We affirm.
The district court did not abuse its discretion when it denied Marshall’s
motion to recuse. Marshall alleged that the magistrate judge was “bias[ed],” but
Marshall failed to file an affidavit stating that the magistrate judge was prejudiced
against him or that the magistrate judge possessed personal knowledge of the case
that required recusal. See 28 U.S.C. § 144. Marshall’s status as a pro se litigant did
not excuse him from providing an affidavit in support of his motion. See Albra v.
Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). Marshall also alleged that the
magistrate judge engaged in “misconduct . . . [by] misconstru[ing] [the] Civil
Rights Complaint as a Bivens action and recommend[ing] that the case be
dismissed,” but Marshall’s disagreement with the magistrate judge’s adverse
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rulings did not constitute a valid ground for recusal. See Draper v. Reynolds, 369
F.3d 1270, 1279 (11th Cir. 2004).
The district court reasonably construed Marshall’s complaint as a Bivens
action. Civil actions against state officers for violating a plaintiff’s federal
constitutional rights are governed by a federal statute, 42 U.S.C. § 1983, while
Bivens recognizes a cause of action against federal officers for violations of federal
constitutional rights. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
Marshall did not allege that any defendant violated his federal constitutional rights
while acting under color of state law as required to state a claim under section
1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). As the
district court stated, Bivens offered Marshall his “best hope for relief” because he
alleged wrongdoing by federal actors. Marshall complained that two federal district
judges, the United States Attorney’s Office, the Federal Medical Center, and the
United States of America conspired to conceal his mental disabilities,
discriminated against him because of his mental disability, and violated the
Americans With Disabilities Act.
The district court did not abuse its discretion by dismissing Marshall’s
complaint as frivolous. When an “action . . . is frivolous,” 28 U.S.C.
§ 1915(e)(2)(B)(i), by being “without arguable merit either in law or fact,” Napier
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v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d
1346, 1349 (11th Cir. 2001)), the district court must dismiss the action and may do
so sua sponte before service of process, Vanderberg v. Donaldson, 259 F.3d 1321,
1323 (11th Cir. 2001). Marshall’s complaint is frivolous because the district judges
enjoy absolute judicial immunity, see Bolin v. Story, 225 F.3d 1234, 1239 (11th
Cir. 2000), and because Bivens does not provide for an action against federal
agencies like the United States Attorney’s Office and the Federal Medical Center,
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 486 (1994), or against the United
States, McCollum v. Bolger, 794 F.2d 602, 608 (11th Cir. 1986), all of which enjoy
sovereign immunity. Marshall does not challenge the dismissal of his claim under
the Disabilities Act, so we deem abandoned any argument he could have made
contesting that adverse ruling. See Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (“While we read briefs filed by pro se litigants liberally, issues not
briefed on appeal by a pro se litigant are deemed abandoned . . . .”).
The district court did not violate Marshall’s right to due process by sua
sponte dismissing his complaint. “[D]ue process requires, at a minimum, that . . .
persons forced to settle their claims of right and duty through the judicial process
must be given a meaningful opportunity to be heard.” Boddie v. Connecticut, 401
U.S. 371, 377 (1971). The screening procedure under which the district court
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dismissed Marshall’s complaint as frivolous, 28 U.S.C. § 1915(e)(2)(B)(ii), does
not violate due process. See Vanderberg, 259 F.3d at 1323. The district court
reviewed Marshall’s objections to the recommendation of the magistrate judge
before entering its final order that dismissed the complaint. See Link v. Wabash
R.R. Co., 370 U.S. 626, 632 (1962) (sua sponte dismissal for failure to prosecute
did not “offend[ ] due process” given “the availability of a corrective remedy”).
And we have reviewed the dismissal of Marshall’s complaint de novo. These
postdecisional procedures provided Marshall ample “meaningful opportunit[ies] to
be heard.” See Boddie, 401 U.S. at 377.
We AFFIRM the dismissal of Marshall’s complaint.
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