USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13847
Non-Argument Calendar
____________________
ELBERT WALKER, JR.,
Plaintiff-Appellant,
versus
DISMAS CHARITIES, INC.,
CAROL OATES,
KIMBERLY JOHNSON,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 2 of 13
2 Opinion of the Court 22-13847
D.C. Docket No. 5:21-cv-00460-MTT
____________________
Before JILL PRYOR, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Elbert Walker, Jr., proceeding pro se, appeals the district
court’s orders denying his motion for a default judgment. He also
argues that the district court judge should have sua sponte recused
himself due to a conflict of interest. After careful review, we affirm.
I.
Walker’s claims in this lawsuit arise out of incidents that oc-
curred while he was on home confinement as part of a federal crim-
inal sentence. After Walker was convicted in federal court of con-
spiracy to commit arson and other crimes, he received a sentence
that consisted of 121 months’ imprisonment and a three-year term
of supervised release. In June 2020, Walker was released from
prison and permitted to serve the remainder of his custodial sen-
tence in home confinement. His home confinement was overseen
by Dismas Charities, Inc., a corporation that contracted with the
Federal Bureau of Prisons (“BOP”).
While on home confinement, Walker had to obtain permis-
sion from Dismas to leave his home. In March 2021, he requested
permission from Dismas to leave his home to work for a construc-
tion company. Initially, Dismas employee Kimberly Johnson ap-
proved Walker’s request. But shortly after giving approval, John-
son told Walker that he could not work for the construction
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 3 of 13
22-13847 Opinion of the Court 3
company. Six months later, Johnson apparently changed her mind
and approved Walker to work at the construction company. But a
month later she again told Walker that he could not. According to
Walker, there was no valid reason for Johnson’s decisions that he
could not work at the construction company.
In October 2021, while on home confinement, Walker
sought permission from Dismas to attend religious services at a
mosque. Dismas employee Carol Oates denied the request, telling
Walker that it was not allowed under BOP policy.
Walker filed a complaint in federal district court against Dis-
mas, Johnson, and Oates. Walker claimed that Johnson’s decisions
denying him permission to work for the construction company vi-
olated his due process rights under the Fifth Amendment because
he did not receive a hearing. And he claimed that Oates’s decision
denying him permission to attend religious services at the mosque
violated his First Amendment right to free exercise of religion.
Walker also alleged that these decisions constituted cruel and unu-
sual punishment in violation of the Eighth Amendment. Walker
demanded money damages for the mental and physical suffering
that he experienced, as well as punitive damages. He did not re-
quest any injunctive or declaratory relief.
After Walker filed his complaint, he served the three defend-
ants. The defendants failed to file a responsive pleading or other-
wise defend the lawsuit, and the clerk entered a default.
Walker then filed a motion for a default judgment. He ar-
gued that the allegations in the complaint established that the
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 4 of 13
4 Opinion of the Court 22-13847
defendants had violated his constitutional rights. He requested that
the district court award him $463,500 in damages.
The district court denied Walker’s motion for a default judg-
ment. It explained that after the clerk’s entry of default, the defend-
ants were deemed to have admitted all the well-pleaded factual al-
legations in Walker’s complaint. But, the court cautioned, Walker
was not automatically entitled to a default judgment; the court had
to consider whether the unchallenged facts in his complaint estab-
lished a legitimate cause of action.
The court concluded that the allegations in Walker’s com-
plaint failed to state a claim for relief. It liberally construed
Walker’s complaint as asserting claims under Bivens v. Six Unknown
Federal Narcotics Agents,
403 U.S. 388 (1971), for violations of his
constitutional rights. But the court explained that the Supreme
Court had recognized that a Bivens remedy was available for a con-
stitutional violation by a federal official in three specific contexts:
“under the Fourth Amendment for an unreasonable seizure arising
from a warrantless arrest of a man in his home,” “under the Fifth
Amendment for gender discrimination arising from the termina-
tion of a congressional aide,” and “under the Eighth Amendment
arising from the failure to provide medical care to a prisoner.” Doc.
8 at 5. 1
The district court concluded that no Bivens remedy was
available for the constitutional violations that Walker alleged.
1 “Doc.” numbers refer to the district court’s docket entries.
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 5 of 13
22-13847 Opinion of the Court 5
Regarding Dismas, the district court explained that the Supreme
Court had held that there was no remedy under Bivens against a
private business that operated “under contract with the Bureau of
Prisons.”
Id. at 6 (citing Correctional Servs. Corp. v. Malesko,
534 U.S.
61, 63 (2001)). And as to the claims against Johnson and Oates, the
district court concluded that Walker’s constitutional claims arose
in a new context—that is, a context different from one in which the
Supreme Court had previously recognized a Bivens remedy—and
that special factors counseled hesitation against implying a Bivens
remedy for a federal prisoner serving the remainder of his prison
sentence on home confinement. The district court thus denied
Walker’s motion for a default judgment. 2 Because Walker’s com-
plaint failed to state a claim for relief, the district court gave him an
opportunity to file an amended complaint to address the deficien-
cies that the court had identified.
2 The district court liberally construed Walker’s complaint as raising three
other claims: (1) “a claim for employment discrimination based on religion,”
(2) a negligent infliction of emotional distress claim arising under Georgia law,
and (3) an intentional infliction of emotional distress claim arising under Geor-
gia law. Doc. 8 at 8. With respect to these three claims, the district court con-
cluded that Walker’s complaint failed to state a claim for relief and thus denied
his motion for default judgment as to these claims as well. Because Walker’s
appellate brief, even liberally construed, does not raise any argument related
to these non-constitutional claims, we discuss them no further. 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[.]” (citation omitted)).
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 6 of 13
6 Opinion of the Court 22-13847
When Walker failed to file an amended complaint by the
court’s deadline, it ordered him to show cause why the case should
not be dismissed. In response, Walker stated he would not amend
because the allegations in his complaint were sufficient to state a
claim for relief and established that he was entitled to a default
judgment. After finding that Walker failed to comply with multiple
orders, the district court dismissed his complaint without preju-
dice.
This is Walker’s appeal.
II.
We review for abuse of discretion a district court’s denial of
a motion for a default judgment. Mitchell v. Brown & Williamson
Tobacco Corp.,
294 F.3d 1309, 1316 (11th Cir. 2002). “A district court
abuses its discretion if it applies an incorrect legal standard, applies
the law in an unreasonable or incorrect manner, follows improper
procedures in making a determination, or makes findings of fact
that are clearly erroneous.” Aycock v. R.J. Reynolds Tobacco Co.,
769 F.3d 1063, 1068 (11th Cir. 2014) (internal quotation marks
omitted).
Generally, we review for abuse of discretion a district court
judge’s refusal to recuse. In re Walker,
532 F.3d 1304, 1308 (11th Cir.
2008). But when a party fails to argue for a judge’s recusal before
the district court, we review the failure of a district court judge to
sua sponte recuse for plain error. Hamm v. Members of the Bd. of Re-
gents of Fla.,
708 F.2d 647, 651 (11th Cir. 1983). Thus, we will only
correct an error that the plaintiff failed to raise in the district court
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 7 of 13
22-13847 Opinion of the Court 7
if: (1) an error occurred; (2) the error was plain; and (3) the error
affected substantial rights. See United States v. Berger,
375 F.3d 1223,
1227 (11th Cir. 2004) (applying the plain error standard to review a
district court judge’s failure to recuse).
III.
On appeal, Walker argues that the district court erred when
it denied his motion for a default judgment because the allegations
in his complaint were sufficient to state a claim that the defendants
violated his constitutional rights. He also argues for the first time
on appeal that the district court judge should have recused himself.
We address each issue in turn.
A.
When a defendant has failed to plead or defend, a district
court may grant a motion for a default judgment. Fed. R. Civ. P.
55(b)(2). Because of our “strong policy of determining cases on
their merits,” default judgments are generally disfavored. In re
Worldwide Web Sys., Inc.,
328 F.3d 1291, 1295 (11th Cir. 2003).
Although “a defaulted defendant is deemed to admit the
plaintiff’s well-pleaded allegations of fact, he is not held to admit
facts that are not well-pleaded or to admit conclusions of law.” Cot-
ton v. Mass. Mut. Life Ins. Co.,
402 F.3d 1267, 1278 (11th Cir. 2005)
(alteration adopted) (internal quotation marks omitted). A default
judgment is warranted only “when there is a sufficient basis in the
pleadings for the judgment entered.” Surtain v. Hamlin Terrace
Found.,
789 F.3d 1239, 1245 (11th Cir. 2015) (internal quotation
marks omitted); see Chudasama v. Mazda Motor Corp.,
123 F.3d 1353,
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 8 of 13
8 Opinion of the Court 22-13847
1370 n.41 (11th Cir. 1997) (“[A] default judgment cannot stand on
a complaint that fails to state a claim.”). “[A] motion for default
judgment is like a reverse motion to dismiss for failure to state a
claim,” requiring a court to assess the legal sufficiency of the claims.
Surtain,
789 F.3d at 1245. We thus ask whether the complaint “con-
tain[ed] sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662,
678 (2009) (internal quotation marks omitted).
The issue before us is here is whether the allegations in
Walker’s complaint were sufficient to state a claim against the de-
fendants for violations of his constitutional rights. At the outset, we
note that although the complaint stated that the constitutional
claims were brought under
42 U.S.C. § 1983, this statute is inappli-
cable. Section 1983 provides a cause of action for a claim brought
against a “person acting under color of state law.” Patrick v. Floyd
Med. Ctr.,
201 F.3d 1313, 1315 (11th Cir. 2000). But there is no alle-
gation that Dismas, Johnson, or Oates were acting under color of
state law. Instead, the allegations in the complaint reflect the claims
against the defendants arise out of actions they took while acting
pursuant to a contract with the federal government. Because Walker
is a pro se litigant, we liberally construe his complaint as bringing
claims against the defendants for money damages under Bivens and
thus ask whether he stated a claim for relief under Bivens.
In Bivens, the Supreme Court recognized an implied cause of
action for money damages against the federal officers who alleg-
edly violated an individual’s Fourth Amendment when arresting
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 9 of 13
22-13847 Opinion of the Court 9
him inside his home. See Bivens, 403 U.S. at 389. After Bivens, the
Supreme Court recognized implied causes of action under the Con-
stitution for money damages in two additional contexts: (1) under
the Fifth Amendment for gender discrimination arising from the
termination of a congressional aide, Davis v. Passman,
442 U.S. 228,
230 (1979), and (2) under the Eighth Amendment for failure to pro-
vide medical care to a prisoner, Carlson v. Green,
446 U.S. 14, 19–20
(1980).
“Since these cases, the [Supreme] Court has not implied ad-
ditional causes of action under the Constitution.” Egbert v. Boule,
596 U.S. 482, 491 (2022). Instead, the Court has described “expand-
ing the Bivens remedy” as “a disfavored judicial activity.” Ziglar v.
Abbasi,
582 U.S. 120, 135 (2017) (internal quotation marks omitted).
Recently, the Court clarified that the inquiry into whether a Bivens
remedy is available “often resolve[s] to a single question: whether
there is any reason to think that Congress might be better equipped
to create a damages remedy.” Boule, 596 U.S. at 492. And when a
case “involves a new category of defendants, . . . a court is not un-
doubtedly better positioned than Congress to create a damages ac-
tion.” Id. (internal quotation marks omitted).
The Supreme Court’s decision in Malesko is particularly in-
structive here. In that case, a federal inmate was injured while liv-
ing at a halfway house where he was serving part of his federal
criminal sentence. See 534 U.S. at 64. A private corporation, acting
under a contract with the Bureau of Prisons, operated the halfway
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 10 of 13
10 Opinion of the Court 22-13847
house. Id. at 63–64. The inmate later sued the contractor for dam-
ages. Id. at 64–65.
The Supreme Court considered whether the inmate had an
implied cause of action against the contractor. Id. at 63. The Court
explained that “[t]he purpose of Bivens is to deter individual officers
from committing constitutional violations” through “the threat of
litigation and liability.” Id. at 70. The Court stated that the “threat
of suit against an individual’s employer was not the kind of deter-
rence contemplated by Bivens.” Id. The Court reasoned that “if a
corporate defendant is available for suit, claimants will focus their
collection efforts on it, and not the individual directly responsible
for the alleged injury.” Id. at 71. The Court refused to “infer[] a
constitutional tort remedy against a private entity” such as the con-
tractor. Id. It also noted that the inmate had an adequate alternative
remedy he could pursue by filing a grievance through the BOP’s
administrative procedures. Id. at 74.
Based on the Supreme Court’s decision in Malesko, we con-
clude that Walker failed to state a claim against Dismas. Just like
the inmate in Malesko had no implied damages remedy under the
Constitution against a contractor that operated a halfway house for
individuals serving federal criminal sentences, we conclude that
Walker has no implied damages remedy under the Constitution
against Dismas, a private contractor supervising federal prisoners
serving their federal criminal sentences on home detention. See id.
at 70–71; see also Walden v. Ctrs. for Disease Control & Prevention,
669 F.3d 1277, 1291 (11th Cir. 2012) (holding that Malesko
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 11 of 13
22-13847 Opinion of the Court 11
“foreclosed inferring a constitutional tort remedy against a private
entity” (internal quotation marks omitted)), abrogated on other
grounds by EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768
(2015).
We also conclude that Walker failed to state a claim against
Johnson or Oates. In effect, Walker’s complaint seeks to extend the
implied remedy against federal officials first recognized in Bivens to
a new class of defendants: individual employees of government
contractors. On top of that, he asks us to recognize an implied
cause of action under the Constitution to claims brought by a per-
son in home confinement as part of a federal criminal sentence al-
leging violations of his right to free exercise of religion under the
First Amendment, his right to procedural due process under the
Fifth Amendment, and his right to be free from cruel and unusual
punishment under the Eighth Amendment. Because “a court is not
undoubtedly better positioned than Congress to create” such a
damages remedy, we conclude that Walker does not have an im-
plied cause of action under the Constitution for his constitutional
claims against Johnson or Oates. Boule, 596 U.S. at 492.
Because Walker’s complaint failed to state a claim for relief,
we cannot say that the district court erred when it denied his mo-
tion for a default judgment. 3
3 In his appellate brief, Walker states in passing that the district court also erred
in dismissing his complaint. Even assuming that Walker adequately raised a
challenge to the district court’s dismissal of his complaint for failure to comply
with court orders, we cannot say that the district court abused its discretion.
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 12 of 13
12 Opinion of the Court 22-13847
B.
We now consider Walker’s argument that the district court
judge should have recused himself. A judge is to recuse “himself in
any proceeding in which his impartiality might reasonably be ques-
tioned.”
28 U.S.C. § 455(a). The standard for recusal under § 455(a)
is “whether an objective, disinterested, lay observer fully informed
of the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality.”
United States v. Patti,
337 F.3d 1317, 1321 (11th Cir. 2003) (internal
quotation marks omitted). In general, “bias sufficient to disqualify
a judge must stem from extrajudicial sources” unless a “judge’s re-
marks in a judicial context demonstrate such pervasive bias and
prejudice that it constitutes bias against a party.” Thomas v. Tenneco
Packaging Co.,
293 F.3d 1306, 1329 (11th Cir. 2002) (internal quota-
tion marks omitted). The Supreme Court has recognized that
We treat the district court’s dismissal in this case as a dismissal without preju-
dice. It’s true that when the statute of limitation bars a plaintiff from refiling,
we will review a dismissal without prejudice as though it was a dismissal with
prejudice. See Mickles v. Country Club, Inc.,
887 F.3d 1270, 1280 (11th Cir. 2018).
But we treat the dismissal here as being without prejudice because the district
court dismissed the action well before the limitations period for any of
Walker’s claims had expired. And “because the case was dismissed without
prejudice, we cannot say that the district court abused its discretion” when it
dismissed the action for failure to comply with court orders. Dynes v. Army Air
Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983). In addition, we also may
affirm on the alternative ground that the complaint failed to state a claim for
relief. See James River Ins. Co. v. Ultratec Special Effects, Inc.,
22 F.4th 1246, 1256
(11th Cir. 2022) (explaining that we can affirm a district court’s “ruling on any
ground that is supported by the record”).
USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 13 of 13
22-13847 Opinion of the Court 13
“judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. United States,
510 U.S. 540, 555
(1994).
Because Walker raises the recusal issue for the first time on
appeal, we review the district court’s failure to recuse himself sua
sponte for plain error only. See Hamm,
708 F.2d at 651. Walker says
that the district court should have recused himself because his rul-
ings in this case show that he was biased against Walker. But we
cannot say that the district court’s judicial rulings demonstrated
any bias. Thus, the district court did not plainly err in failing to sua
sponte recuse himself. See Thomas,
293 F.3d at 1329.
IV.
For the reasons set forth above, we affirm.
AFFIRMED.
