Watkins v. Food Service Staff Members

Case: 21-40377 Document: 00516572807 Page: 1 Date Filed: 12/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 9, 2022
No. 21-40377 Lyle W. Cayce
Clerk
Eric Watkins,
Plaintiff—Appellant,
versus
Food Service Staff Members, Individually and in Their Official
Capacity; Unknown Parties, Other Correctional Officers, Individually
and in Their Official Capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CV-599
Before Wiener, Higginson, and Wilson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Eric Watkins brings a Bivens action against food service staff members
at the Beaumont Federal Correctional Complex, see Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), claiming they
denied him breakfast on December 18, 2008, as retaliation for grievances he
filed against them. The district court dismissed Watkins’s action for failure
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-40377 Document: 00516572807 Page: 2 Date Filed: 12/09/2022
No. 21-40377
to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), concluding it was
untimely. “We may affirm on any ground supported by the record, including
one not reached by the district court.” Hammervold v. Blank, 3 F.4th 803, 813
(5th Cir. 2021) (quoting Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014)).
As we concluded in a closely related appeal Watkins previously filed,
his complaint is best construed as a Bivens action for First Amendment
retaliation. Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons,
998 F.3d 682, 685 (5th Cir. 2021). However, the Supreme Court recently
held that “there is no Bivens action for First Amendment retaliation.” Egbert
v. Boule, 142 S. Ct. 1793, 1807 (2022). Therefore, without reaching the
question of timeliness, we conclude that Watkins has failed to state a claim
upon which relief may be granted.
AFFIRMED.
2