IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 13, 2009
No. 08-40357 Charles R. Fulbruge III
Clerk
ANTHONY BOYD
Plaintiff - Appellant
v.
JOE D. DRIVER, et al.
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Anthony Boyd, a federal prisoner, filed a Bivens 1 action against numerous
prison employees alleging that they initiated criminal charges against him based
on two October 2004 assaults between Boyd and prison staff. Boyd reported the
assaults to the Bureau of Prisons Regional Office claiming that he was the
victim and that video evidence corroborates his view and shows that he was
handcuffed. After Boyd’s report, prison employees gave statements regarding
the assaults that resulted in an indictment against Boyd. He was tried and
acquitted in federal court.
1
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971).
No. 08-40357
Boyd’s instant complaint alleges that prison employees committed perjury
at his assault trial and destroyed and tampered with video evidence showing he
was the victim of the assaults. He labels his cause of action as a “malicious
prosecution conspiracy.”
The district court granted the defendants’ motion to dismiss. It ruled that
Boyd could not show that the criminal action was brought against him without
probable cause because records indicating that Boyd was administratively
disciplined for one of the assaults, along with the fact that Boyd was indicted by
a grand jury, sufficiently established the probable cause element of malicious
prosecution.2
We review a district court’s grant of a motion to dismiss de novo.3 While
we disagree with the district court’s use of documents “outside of the pleadings,”
in deciding to grant the motion to dismiss,4 we need not elaborate on that point
as the malicious prosecution claim fails nonetheless. Because “the assertion of
2
The district court reached the merits after declining to rule on whether Boyd had
exhausted prison administrative remedies and the government now raises the exhaustion
issue on appeal. The applicable exhaustion provision applies only to suits “brought with
respect to prison conditions.” 42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516, 532
(2001), the Court held that the "exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong." Despite that sweeping definition of prisoner
claims that must be exhausted, and although the claimed assault by Boyd is relevant to his
claim, the claim itself is for perjury and tampering with evidence in a federal court proceeding
and thus does not qualify, under the ordinary meaning of the term, as being "about prison life."
The exhaustion requirement does not bar Boyd's action.
3
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The district
court also stated it dismissed the action as frivolous, citing 28 U.S.C. § 1915(e) and 28 U.S.C.
§ 1915A. Our review when both of these statutes are referred to remains de novo. Gieger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
4
See Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (holding that “[i]n
determining whether to grant a motion to dismiss, the district court must not go ‘outside of
the pleadings’” except for in the limited exception where documents that are “referred to in the
plaintiff’s complaint and are central to the plaintiff’s claim” are attached to a motion to
dismiss).
2
No. 08-40357
malicious prosecution states no constitutional claim,” that claim alone does not
support a Bivens action.5
However, Boyd’s handwritten pro se complaint includes allegations
supporting a direct due process claim.6 Boyd claims that prison employees gave
perjured testimony at his criminal trial and destroyed and tampered with video
evidence of the alleged assaults. While a malicious prosecution claim does not
inevitably entail constitutional deprivation, the government’s “manufacturing
of evidence and knowing use of that evidence along with perjured testimony to
obtain a wrongful conviction deprives a defendant of his long recognized right to
a fair trial secured by the Due Process Clause.”7 The allegations in Boyd’s
complaint give rise to claims of direct constitutional deprivation that support a
Bivens action. We express no view on the validity of any of Boyd's claims, on the
accuracy of his factual allegations, or on what decisions the district court should
make on remand.
AFFIRMED in part; REVERSED and REMANDED in part.
5
Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir. 2003) (en banc). Although the claim
in Castellano was brought under § 1983, while Boyd invokes Bivens, the constitutional torts
authorized by each are coextensive. See Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir.
2005); Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir.1999) (“A Bivens action is analogous to
an action under § 1983—the only difference being that § 1983 applies to constitutional
violations by state, rather than federal, officials.”).
6
See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“The handwritten pro se document is
to be liberally construed.”).
7
Castellano, 352 F.3d at 942.
3