In the
United States Court of Appeals
For the Seventh Circuit
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No. 21-3077
AHAMAD R. ATKINS,
Plaintiff-Appellant,
v.
J. PHIL GILBERT, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:21-cv-489-DWD — David W. Dugan, Judge.
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SUBMITTED OCTOBER 25, 2022 * — DECIDED OCTOBER 28, 2022
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Before SYKES, Chief Judge, and WOOD and BRENNAN, Circuit
Judges.
PER CURIAM. Ahamad Atkins, a federal inmate, sued fed-
eral judges, the prosecutor, his court-appointed attorneys, a
*The appellees were not served with process and are not participating
in this appeal. After examining the appellant’s brief and the record, we
have agreed to decide this case without oral argument because the appeal
is frivolous. See FED. R. APP. P. 34(a)(2)(A).
2 No. 21-3077
federal court reporter, and the United States for, in his view,
mishandling his criminal trial. At screening, the district judge
correctly dismissed the claims against all defendants as frivo-
lous; we thus affirm.
Atkins pleaded guilty to federal drug crimes in 2014, and
after unsuccessfully challenging his conviction and sentence,
he sued federal employees connected to his prosecution. He
alleged that the district and magistrate judges committed er-
rors; the prosecutor did not identify herself when talking to
Atkins during the case and did not respond to his motion for
compassionate release; the court reporter “invaded” his tran-
scripts; and his court-appointed attorneys were ineffective.
Atkins also sued the United States but did not state any alle-
gations against it.
The district judge screened the complaint, see 28 U.S.C.
§ 1915A, and dismissed it with prejudice as frivolous. He
ruled that the judges and the prosecutor were absolutely im-
mune from civil suit. The judge dismissed the claims against
the remaining federal employees as well, construing them as
based on Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Atkins’s claim against the
court reporter failed because it did not arise under the Fourth,
Fifth, or Eighth Amendment and therefore fell outside of the
Bivens theory now recognized by the Supreme Court.
See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). The Sixth Amend-
ment claims against the federally appointed defense attorneys
failed for the same reason that state-appointed defense attor-
neys are not amenable to such claims. See Polk County v. Dod-
son, 454 U.S. 312, 325 (1981). The United States, the judge also
ruled, is not a proper defendant in a Bivens suit. Finally, the
judge explained that, if those grounds for dismissal were
No. 21-3077 3
invalid, he would alternatively dismiss all claims under Heck
v. Humphrey, 512 U.S. 477, 486–87 (1994), because Atkins’s
criminal conviction is intact.
Atkins has appealed, but he does not engage with the dis-
trict judge’s decision except to argue that, in his criminal case,
neither the judge nor the prosecutor replied to his motion for
compassionate release. We are mindful of Atkins’s pro se sta-
tus, see Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir.
2001), but he is still required to comply with Rule 28(a) of the
Federal Rules of Appellate Procedure and include an argu-
ment explaining why the district judge’s decision was incor-
rect. Cole v. Comm'r, 637 F.3d 767, 772–73 (7th Cir. 2011). We
could dismiss his appeal for failing to comply with this rule.
Id. at 773. Still, we prefer to decide cases on the merits when
we can, Boutros v. Avis Rent A Car Sys., LLC, 802 F.3d 918, 924
(7th Cir. 2015), and it is possible to do so here.
The district judge correctly dismissed the suit with preju-
dice. All the acts that Atkins attributes to the judges (errone-
ous rulings and an alleged failure to decide a compassionate-
release motion) and prosecutor (communication and disre-
gard of the same motion) occurred in the criminal case and
fell within their roles as judge or prosecutor. Thus, they are
absolutely immune from suit. See Stump v. Sparkman, 435 U.S.
349, 355–57 (1978); Imbler v. Pachtman, 424 U.S. 409, 430–31
(1976). 1 The dismissal of claims against the court reporter for
“invasion” of his transcript (by which we assume he means
wrongly transcribing his trial) was likewise proper. The
1 As an aside, we note that the record reflects that the judge addressed
Atkins’s motion for release by denying it in October 2020, and the clerk
mailed notice of the ruling to the warden of his prison the next day.
4 No. 21-3077
Supreme Court has not implied a Bivens-style constitutional
claim against federal officials for transcription errors.
See Ziglar, 137 S. Ct. at 1859, 1865. Given that an alternate rem-
edy to cure transcript inaccuracies is available—through the
district court or on appeal, see FED. R. APP. P. 10(e)—we will
not imply a civil damages remedy.
The district judge also properly dismissed the remaining
claims. The federal defense attorneys cannot be defendants in
a Bivens suit because they did not act under color of law.
See Polk County, 454 U.S. at 325; Haley v. Walker, 751 F.2d 284,
285 (8th Cir. 1984) (applying Polk County to Bivens claim
against federal defense attorney); Cox v. Hellerstein, 685 F.2d
1098, 1099 (9th Cir. 1982) (same). Finally, the judge rightly dis-
missed claims against the United States because it too is not
suable in a Bivens action. Kaba v. Stepp, 458 F.3d 678, 687
(7th Cir. 2006).
We end with the matter of strikes. As the judge told At-
kins, he incurred a “strike” under 28 U.S.C. § 1915(g) for filing
a frivolous suit. He has incurred another “strike” for filing
this frivolous appeal. We are mindful that Atkins is concerned
that the word “frivolous” denigrates what he genuinely be-
lieves is his good faith effort to seek legal recourse. Describing
his claims as frivolous does not impugn Atkins’s honesty but
acknowledges that established precedent forecloses those
claims. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014). Atkins should be aware, though, that persistence in fil-
ing frivolous claims or appeals can invite sanctions from the
court. See Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185 (7th Cir.
1995).
AFFIRMED