Darrell Lamar Marshall v. USA, et al., No. 18-10655 (11th Cir. 2019)

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Case: 18-10655 Date Filed: 03/04/2019 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-10655 Non-Argument Calendar ________________________ D.C.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. ________________________ Appeal from the United States District Court for the Middle District of Alabama ________________________ (March 4, 2019) Case: 18-10655 Date Filed: 03/04/2019 Page: 2 of 5 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 2 Case: 18-10655 Date Filed: 03/04/2019 Page: 3 of 5 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 3 Case: 18-10655 Date Filed: 03/04/2019 Page: 4 of 5 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 4 Case: 18-10655 Date Filed: 03/04/2019 Page: 5 of 5 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. 5

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