Ryan Joseph v. FCI Miami, No. 09-10936 (11th Cir. 2009)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 09-10936 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT NOVEMBER 30, 2009 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). 2 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
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