Kelly Jones v. Jorge Luis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13557 ELEVENTH CIRCUIT
APRIL 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-21751-CV-WMH
KELLY JONES,
Plaintiff-Appellant,
versus
JORGE LUIS,
FEDERAL BUREAU OF PRISONS,
UNITED STATES OF AMERICA,
UNKNOWN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 14, 2010)
Before EDMONDSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Kelly Jones, a federal prisoner proceeding pro se, appeals (1) the dismissal
of his civil rights complaint for failure to state a claim upon which relief could be
granted under 28 U.S.C. § 1915(e)(2)(B)(ii), and (2) the dismissal of his motion to
strike the magistrate judge’s supplemental Report and Recommendations (“R&R”)
and motion to recuse the magistrate judge. After review of Jones’s brief and the
record, we affirm the district court’s denial of his motions and dismissal of his
complaint.
Jones filed a complaint against three defendants: Federal Detention Center-
Miami Psychologist Jorge Luis, the Federal Bureau of Prisons (“BOP”), and
John/Jane Doe. During a prior criminal trial, the court ordered Jones to participate
in a psychological examination under 18 U.S.C. § 4241, in order to determine
whether he was competent to withdraw from his motion to withdraw his guilty
plea. Luis was assigned to conduct the evaluation, and determined that Jones was
competent. Jones alleged in his amended complaint that Luis failed to consider
numerous psychological records that Jones’s attorney had sent to Luis, but were
never received by Luis. Jones also alleged that Luis’s report was filled with
“fraudulent misrepresentations, prejudicial comments, unsupported assumptions,
untrue statements, and false claims.” Jones then stated that Luis gave fraudulent
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testimony at Jones’s sentencing hearing regarding his psychological character.
I. Recusal Motion
We review the denial of a motion for recusal for abuse of discretion. United
States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (per curiam) (citation
omitted). A district judge or magistrate judge must recuse himself “in any
proceeding in which his impartiality might reasonably be questioned,” or “[w]here
he has a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).
The standard of review for a § 455 motion “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) (citation and quotation
omitted).
The magistrate judge, in a supplemental R&R, expounded on the details of
Jones’s criminal case to better shed light on the reasons his complaint failed to
state a claim for relief. Jones argues that the magistrate judge showed his “bias and
apparent anger” in providing this additional information to assist the defendants.
Appellant Br. 13. Usually, bias sufficient to disqualify a judge must stem from an
extrajudicial source, except “when a judge’s remarks in a judicial context
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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)
(per curiam) (citation and quotation omitted). “[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” Draper v. Reynolds,
369 F.3d 1270, 1279 (11th Cir. 2004) (quoting Liteky v. United States, 510 U.S.
540, 555, 114 S. Ct. 1147, 1157 (1994)). The bias must be personal, rather than
judicial in nature. Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per
curiam) (citation omitted). Therefore, a judge’s rulings are not a sufficient basis
for recusal in the absence of a showing of pervasive bias. Id.Other than the magistrate judge’s recommendation in his supplemental
R&R, Jones point to nothing that would indicate that the magistrate judge was
personally biased towards him, and points to no remarks by the magistrate judge
that would indicate pervasive bias. Thus, the district court did not abuse its
discretion in denying Jones’s motions to strike and recuse.
II. Failure to State a Claim
We review de novo the district court’s sua sponte dismissal for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), taking the allegations in the
complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003)
(citation omitted). We liberally construe pro se pleadings, holding them to a less
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stringent standard than pleadings drafted by attorneys. Id. at 1160 (citation
omitted).
Jones’s amended complaint states five causes of action: (1) a violation of the
Privacy Act, 5 U.S.C. § 552a(e)(5); (2) defamation, libel and slander; (3) violation
of the BOP’s “Psychological Services Manual;” (4) breach of Luis’s fiduciary
duty; and (5) fraudulent misrepresentation.
A. The Privacy Act
The Privacy Act, 5 U.S.C. § 552a, “governs the government’s collection and
dissemination of information and maintenance of its records [and] generally allows
individuals to gain access to government records on them and to request correction
of inaccurate records.” Perry v. Bureau of Prisons, 371 F.3d 1304, 1304 (11th Cir.
2004) (per curiam) (alteration in original) (citation and quotation omitted).
The Privacy Act allows an individual to bring a civil action in a district court
against an agency if the agency “fails to maintain any record concerning any
individual with such accuracy, relevance, timeliness, and completeness as is
necessary to assure fairness in any determination” concerning such individual that
is based upon such record. 5 U.S.C. § 522a(g)(1)(C).
To state a claim under the Privacy Act, a plaintiff must allege “1) that the
government failed to fulfill its record keeping obligation, 2) which failure
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proximately caused the adverse determination, 3) that the agency failed
intentionally or willfully to maintain the records, and 4) that the plaintiff suffered
actual damages.” Perry, 371 F.3d at 1305 (citation and quotation omitted).
Furthermore, the Privacy Act only authorizes civil actions against an agency, not
individual persons. Id.Jones alleges in his amended complaint that “Defendant knowingly and
maliciously made detrimental determinations against [Jones] in his criminal
proceeding.” D.E. 19 at 3. Even construing “Defendant” to include both Luis and
the BOP, Jones has not stated a claim for relief. He did not allege any failure on
the part of the BOP to fulfill its record keeping obligations. Instead, he argues that
Luis “made detrimental determinations” against Jones in his criminal proceeding
on the basis of the record. That is, he does not allege any errors in the BOP’s
record keeping; rather, he alleges that Luis misused the information in the records
to make an adverse determination against Jones. However, Jones cannot bring an
action against a private individual such as Luis. Because Jones has alleged no
failure on the part of the BOP in its record keeping, and cannot state a claim
against Luis as an individual, the district court properly dismissed his Privacy Act
claim.
B. Defamation Claim
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Issues that are not briefed on appeal by a pro se litigant are deemed
abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam)
(citation omitted). On appeal, Jones does not address the dismissal of his
defamation claim, and has abandoned this issue on appeal.
C. Violation of the BOP’s Psychological Services Manual
In Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395 (1971), “the
Supreme Court created a remedial scheme to enforce justiciable constitutional
rights.” Denson v. United States, 574 F.3d 1318, 1335–36 (11th Cir. 2009). Thus,
to establish a Bivens claim, a plaintiff must allege, inter alia, deprivation of a
constitutional right. See id. at 1336; Abella v. Rubino, 63 F.3d 1063, 1065 (11th
Cir. 1995) (per curiam) (stating that a Bivens claim challenges the constitutionality
of federal officials’ actions).
Here, for the first time on appeal, Jones argues that Luis violated his due
process rights by failing to obey BOP policies and procedures. In the district court,
Luis simply alleged that Luis violated the BOP’s “Psychological Services
Manual,” and, as a result, Jones suffered compensable injuries. To the extent that
Jones argues that Luis violated his due process rights, we will not consider an
argument that was not presented below. See Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998) (per curiam). Because Jones did not allege that
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failure to follow BOP procedures rose to the level of a constitutional violation, the
district court properly dismissed his claim.
D. Claim Brought Under 18 U.S.C. § 4241Pursuant to 18 U.S.C. § 4241(a), the defendant or the attorney for the
Government may file a motion for a hearing to determine the defendant’s mental
competency at any time between commencement of the prosecution and prior to
sentencing. Jones alleges that Luis breached his fiduciary duty to him under
section 4241 by failing to report material information that was beneficial.
Whether a statute creates a private right of action is a “question of statutory
construction.” Love v. Delta Air Lines, 310 F.3d 1347, 1351 (11th Cir. 2002)
(citation and quotation omitted). There is no indication in the text of section 4241
that it intended to create a private cause of action. Instead, section 4241 is a
criminal procedure statute instructing the court as to how to determine a
defendant’s mental competency to stand trial in a criminal proceeding. Because no
private right of action exists under 18 U.S.C. § 4241, the district court properly
dismissed Jones’s claim under this statute.
E. Fraudulent Misrepresentation
Witnesses are granted absolute immunity from § 1983 claims for their
testimony during trials. Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999)
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(citation omitted). We generally apply § 1983 law to Bivens cases. See Wilson v.
Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998) (citation omitted). The penalty
for false testimony by witnesses is potential prosecution for perjury. Jones, 174
F.3d at 1281 (citation omitted).
Jones seeks damages for Luis’s allegedly fraudulent testimony during
Jones’s criminal proceedings. Assuming that Luis made fraudulent
misrepresentations during the trial, he is immune from civil liability.
The district court properly dismissed Jones’s amended complaint for failure
to state a claim. Accordingly, we affirm.
AFFIRMED.
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