USCA11 Case: 21-12414 Date Filed: 05/18/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12414
Non-Argument Calendar
____________________
JOHHNY CLYDE BENJAMIN, JR.,
Plaintiff-Appellant,
versus
U.S. DEPARTMENT OF JUSTICE,
Civil Divison, Torts Branch,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-21847-KMM
____________________
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2 Opinion of the Court 21-12414
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Johnny Clyde Benjamin, Jr., a federal prisoner proceeding
pro se, appeals the sua sponte dismissal of a civil action seeking to
set aside his prior criminal conviction and hold the United States
liable under Bivens v. Six Unknown Federal Narcotics Agents,
403
U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”).
The underlying facts of Benjamin’s conviction are detailed
in this Court’s decision affirming his conviction, United States v.
Benjamin (“Benjamin I” ),
958 F.3d 1124, 1132-33 (11th Cir.), cert.
denied,
141 S. Ct. 561 (2020). Of relevance to this appeal, Benjamin
in Benjamin I, argued, among other things, that the district court
lacked subject matter jurisdiction over his criminal case. In affirm-
ing the conviction, this Court concluded that “the district court had
subject matter jurisdiction over [Benjamin’s] drug charges.”
Id. at
1133.
Benjamin then filed the present pro se civil suit asserting
claims of abuse of process, interference with prospective economic
advantage, false imprisonment, malicious prosecution, and emo-
tional distress in connection with his criminal case. 1
1 We note that Benjamin also filed a motion to vacate, under
28 U.S.C. § 2255
and again raised, in part, a subject matter jurisdiction challenge concerning his
criminal case. The district court denied this § 2255 motion on the merits.
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21-12414 Opinion of the Court 3
The district court found that Benjamin’s claims were based
on Bivens and thus barred under Heck v. Humphrey,
512 U.S. 477
(1994). The district court further determined that Benjamin’s
wrongful federal conviction claim was not cognizable under the
FTCA and also rejected his claim that his prior criminal convictions
were improper because the district court in that case did not have
subject matter jurisdiction. On appeal, Benjamin challenges the
preceding determinations. We address each point in turn.
I.
We review de novo a district court’s sua sponte dismissal for
failure to state a claim under § 1915A. Leal v. Ga. Dep’t of Corr.,
254 F.3d 1276, 1279 (11th Cir. 2001). The standards that govern
dismissal under § 1915A are the same as dismissal under Fed. R.
Civ. P. 12(b)(6). See White v. Lemma,
947 F.3d 1373, 1376-77 (11th
Cir. 2020). To survive dismissal, a complaint must contain enough
facts to state a claim to relief that is plausible on its face. Ashcroft
v. Iqbal,
556 U.S. 662, 678 (2009). A complaint that fails to state a
claim upon which relief can be granted may be dismissed. Fed. R.
Civ. P. 12(b)(6).
We construe a pro se litigant’s pleadings liberally. Alba v.
Montford,
517 F.3d 1249, 1252 (11th Cir. 2008). Although pro se
pleadings are liberally construed and held to less stringent stand-
ards than those drafted by attorneys, they must still suggest some
factual basis for a claim. Jones v. Fla. Parole Comm’n,
787 F.3d
1105, 1107 (11th Cir. 2015). Moreover, we will not consider argu-
ments that are forfeited on appeal. See United States v. Campbell,
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4 Opinion of the Court 21-12414
26 F.4th 860, 873 (11th Cir. 2022) (en banc). Specifically, any “issue
that an appellant wants the Court to address should be specifically
and clearly identified in the brief. . . . Otherwise, the issue . . . will
be considered abandoned.” Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (internal quotation marks omit-
ted).
In Bivens, the Supreme Court permitted suit against federal
officers for deprivations of rights under the color of state law.
Bivens,
403 U.S. at 395-97; see Hartman v. Moore,
547 U.S. 250, 254
n.2 (2006) (discussing that a Bivens action is “the federal analog” to
a
42 U.S.C. § 1983 action). In Heck, however, the Supreme Court
held that before a plaintiff may proceed with a § 1983 action “to
recover damages for allegedly unconstitutional conviction or im-
prisonment, or for other harm caused by actions whose unlawful-
ness would render a conviction or sentence invalid,” he must prove
that the conviction(s) or sentence(s) had already been invalidated
or called into question. Heck,
512 U.S. at 486-87. We have since
applied Heck to Bivens actions. See Abella v. Rubino,
63 F.3d 1063,
1065-66 (11th Cir. 1995).
The FTCA does not create a substantive cause of action
against the United States, but rather provides a mechanism by
which a plaintiff may bring a state law tort action against the federal
government in federal court. See Stone v. United States,
373 F.3d
1129, 1130 (11th Cir. 2004). Under the FTCA, the United States is
subject to liability in a tort action in the same manner, and to the
same extent, that a private individual would be under the law of
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21-12414 Opinion of the Court 5
the place where the tort occurred. See
28 U.S.C. § 1346(b)(1). Im-
portantly, “unless the facts support liability under state law, the dis-
trict court lacks subject matter jurisdiction to decide an FTCA
claim.” Ochran v. United States,
273 F.3d 1315, 1317 (11th Cir.
2001). Thus, claims involving federal law, such as federal tort
claims, are not within the scope of the FTCA. McCollum v. Bolger,
794 F.2d 602, 608 (11th Cir. 1986).
Here, we conclude that the district court properly dismissed
Benjamin’s complaint because (1) his claims were effectively made
under Bivens and he forfeited any arguments against the applica-
tion of Heck to such claims; (2) his challenge against his federal
convictions was not cognizable under state law and was not action-
able under the FTCA; and (3) his pleading was deficient because he
failed to allege sufficient facts to support his claims. Accordingly,
we affirm in this respect.
II.
Next, Benjamin argues on appeal that the district court did
not have subject matter jurisdiction in his criminal case because
Congress had not criminalized the controlled substance analogue
that he was charged with possessing (furanyl fentanyl) until after
his criminal proceedings had begun. When appropriate, we review
a question of subject matter jurisdiction de novo. Greenberg v.
Comm’r,
10 F.4th 1136, 1155 (11th Cir. 2021).
As previously noted, however, Benjamin in Benjamin I, ar-
gued, among other things, that the district court lacked subject
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6 Opinion of the Court 21-12414
matter jurisdiction over his criminal case and in affirming the con-
viction, this Court concluded that “the district court had subject
matter jurisdiction over [Benjamin’s] drug charges.”
Id. at 1133.
Under the prior-panel-precedent rule, we are bound by published
decisions of prior panels unless and until either the Supreme Court
or we, while sitting en banc, overrule the prior decision to the point
of abrogation. In re Lambrix,
776 F.3d 789, 794 (11th Cir. 2015).
Such a decision cannot be circumvented or ignored on the basis of
arguments not made to or considered by a prior panel.
Id. As such,
Benjamin’s arguments concerning the lack of subject matter juris-
diction in his criminal case are foreclosed by our prior decision in
Benjamin I.2 Accordingly, for the reasons stated, we affirm the dis-
trict court’s dismissal.
AFFIRMED.
2 As a result of this conclusion, we deny Benjamin’s motion filed with this
Court “Challenging Subject Matter Jurisdiction Of Lower Courts.”
