[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10936 ELEVENTH CIRCUIT
NOVEMBER 30, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-21670-CV-MGC
RYAN JOSEPH,
Petitioner-Appellant,
versus
FCI MIAMI,
Jorge Pastrana (Warden),
FEDERAL BUREAU OF PRISONS,
Harley G. Lappin,
RONALD HOLT,
UNITED STATES OF AMERICA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 30, 2009)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ryan Joseph, a federal prisoner proceeding pro se, filed a habeas corpus
petition and amended complaint alleging violations of his Eighth Amendment
rights and naming as defendants the United States, the Federal Bureau of Prisons,
and several individuals: Jose Pastrana, Harley Lappin, and Ronald Holt.1 The
district court construed his petition as a Bivens action,2 and Joseph later filed an
amended complaint bringing additional claims under the Federal Tort Claims Act,
28 U.S.C. § 2674, and the Administrative Procedure Act, 5 U.S.C. § 702. The
district court dismissed Joseph’s complaint for failure to state a claim, 28 U.S.C.
§ 1915(e)(2)(B)(ii), and he now appeals the court’s dismissal of his Eighth
Amendment claims.3
We review § 1915(e)(2)(B)(ii) dismissals de novo, viewing the allegations
in the complaint as true. Douglas v. Yates, 535 F.3d 1316, 1319–20 (11th Cir.
2008). The United States and its agencies are not proper defendants in a Bivens
1
Joseph apparently intended to sue Raymond Holt, the Bureau of Prisons’ Regional Director.
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
3
In his brief, Joseph does not challenge the dismissal of his FTCA and APA claims; he has
therefore abandoned those issues on appeal. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th
Cir. 1998).
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action. FDIC v. Meyer, 510 U.S. 471, 484–86 (1994); McCollum v. Bolger, 794
F.2d 602, 608 (11th Cir. 1986). Accordingly, the district court’s dismissal of
Joseph’s Eighth Amendment claims against the United States and the Bureau of
Prisons was not in error, and we affirm this portion of the court’s order.
With respect to the individual defendants, Joseph never properly served
them with process. See Fed. R. Civ. P. 4. Consequently, the district court’s
discussion of the merits of Joseph’s claims against them was unnecessary.
Whereas a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is
ordinarily with prejudice, cf. Yates, 535 F.3d at 1320–22, a dismissal for
insufficient service of process is without prejudice, Fed. R. Civ. P. 4(m). We
therefore vacate the dismissal of Joseph’s claims against the individual defendants
under § 1915(e)(2)(B)(ii) and remand with instructions to dismiss them without
prejudice under Federal Rule of Civil Procedure 4(m).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
3