Howard v. Federal Bureau Prsns ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT W. HOWARD,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF PRISONS; KEITH
No. 99-6708
OLSON, Warden, FCI Beckley, in his
official capacity; KIM DIGRE, Unit
Manager, in her official and
personal capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CA-98-1233-5)
Submitted: September 21, 1999
Decided: October 7, 1999
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert W. Howard, Appellant Pro Se. Michael Lee Keller, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Vir-
ginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Robert Howard filed a complaint against the Federal Bureau of
Prisons ("BOP"); Keith Olson, Warden at F.C.I. Beckley; and Kim
Digre, Unit Manager at F.C.I. Beckley, alleging that prison officials
were deliberately indifferent to his medical needs. Olson was sued in
his official capacity only and Digre was sued in her official and per-
sonal capacities. Howard alleged that Digre took away medical privi-
leges given to him by the BOP's medical personnel. Specifically,
Howard claimed in an unverified complaint that Digre intentionally
instructed an unspecified person to destroy medical permits granting
Howard permission to wear soft shoes, go to "early chow," be housed
in a first floor unit, and assigned a lower bunk. Howard claimed that
as a result of Digre's actions, he was denied the privileges granted
through these permits and suffered physical and mental pain and suf-
fering. We have reviewed the record and affirm the district court's
judgment.
Howard cannot bring an action under Bivens1 against the BOP
because such actions cannot be brought against agencies of the federal
government. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). Further-
more, Bivens will not support an action against officials sued in their
official capacity only. See Berger v. Pierce, 933 F.2d 393, 397 (6th
Cir. 1991); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.
1987); see also Randall v. United States, 95 F.3d 339, 345 (4th Cir.
1996) (Bivens actions are "against federal officials individually"). Nor
will a Bivens action support such a claim under a respondeat superior
theory. See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.
1995). Thus, the district court properly dismissed the complaint
against the BOP and Olson. Likewise, Howard's claim against Digre
in her official capacity is also without merit.
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1 See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
2
We find that the evidence as submitted by the Appellees estab-
lished that Digre was not deliberately indifferent to Howard's needs
because there was no evidence that she intentionally had Howard's
medical permits destroyed. See Strickler v. Waters, 989 F.2d 1375,
1379 (4th Cir. 1993). Because Howard did not offer any affidavits,
depositions or other evidence in response to the Appellees' summary
judgment motion, we conclude that Digre is entitled to summary
judgment on Howard's claim that she was deliberately indifferent to
his medical needs. See Allstate Fin. Corp. v. Financorp, Inc., 934
F.2d 55, 58-59 (4th Cir. 1991).2
Accordingly, we affirm the district court's judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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2 Although the district court dismissed Howard's claim against Digre
for failing to exhaust administrative remedies, we can affirm the court's
judgment for any reason appearing on the record. See Mann v. Haigh,
120 F.3d 34, 36 (4th Cir. 1997).
3