* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-10765

Summary Calendar

JOHN HAGAN,

Appellant,

versus

PAUL COGGINS, Individually and as

United States Attorney for the Northern

District of Texas; BOBBY SCOTT, Individually

and as the District Director of the Internal

Revenue Service Northern District of Texas,

Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(3:97-CV-3041-L)

January 26, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges

PER CURIAM: *

Plaint iff, John Hagan (“Hagan”), appeals the district court’s grant of summary judgment in

favor of Paul Coggins and Bobby Scott (“Appellees” or “defendants”) in their individual and official

capacities. For the following reasons we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hagan is a Certified Public Accountant who filed for bankruptcy in1998. During the

bankruptcy proceedings he instituted an adversarial proceeding against Paul Coggins (“Coggins”),

United States Attorney for the Northern District of Texas, and Bobby E. Scott (“Scott”), former IRS2

Director for the North Texas District. In his original and amended complaints Hagan alleged that

Coggins and Scott targeted him and attempted to entrap him by sending undercover federal agents

into his business posing as customers and asking Hag an t o file fraudulent tax returns, and launder

money. Hagan also claims that at the request of Coggins, and under the direction of Scott, the IRS

began extensive audits of Hagan’s two biggest clients. Hagan’s complaint named Coggins and Scott

in both their individual

and o fficial capacities, and sought relief for “personal injuries” including

financial loss. Hagan claimed that t hese perso nal injuries were a result of violation of his Fourth

Amendment right to be free from unlawful searches and seizures. In February 1998, the reference

o f t hese adversarial proceedings to the bankruptcy court was withdrawn and this action was

transferred to the district court. The magistrate judge found that Hagan failed to prove any violation

of his Fourth Amendment rights, and that the suit against Coggins and Scott in their official capacities

was a s uit against the United States and thus barred by sovereign immunity. The magistrate

recommended granting summary judgment in favor of Coggins and Scott in both their individual and

official capacities. The district court subsequently ado pted the magistrate’s findings and granted

summary judgment in favor of Coggins and Scott.

DISCUSSION

Hagan argues that the district court erroneously granted summary judgme nt in favor of

Coggins and Scott. Specifically, Hagan contends that the district court utilized an improper summary

judgment standard, and that the district court wrongly concluded tha t his action against the

defendants was barred by sovereign immunity. Finally, Hagan argues that the district court should

not have granted summary judgment prior to discovery.

I. Standard of Review

Hagan argues that the magistrate’s order which was adopted by the district court is unclear3

as to whether his suit was dismissed on summary judgment or under F ED

. R. C IV

. P. 12(b)(6). If

matters outside of the pleadings are presented when a party makes a motion for judgment on the

pleadings, that motion should be treated as a motion for summary judgment. F E D

. R. C IV

. P. 12(c);

Letcher v. Turner

, 968 F.2d 508, 509 (5 th Cir. 1992). In the present case, affidavits accompanied the

defendants’ motion to dismiss, therefore the motion is considered as a motion for summary judgment.

It is well settled that this court reviews a district court’s grant of summary judgment de novo

.

Letcher , 968 F.2d at 509-10.

Summary judgment is proper when the pleadings and any other evidence, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to judgment as

a matter of law. C elotex v. Cartrett

, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d 265

(1986). The burden on the party moving for summary judgment may be discharged by pointing out

to the district court that there is a lack of evidence to support the nonmoving party’s case. I d. at 325.

Once the moving party has carried its init ial burden the nonmoving party must come forward with

specific facts showing that there is a genuine issue for trial. Matushita Electric Industrial Co. Ltd.

v. Zenith Radio Corporation , 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed. 2d 538 (1986).

II. Claims against Defendants in their Individual Capacities

Hagan asserts that his claims against Coggins and Scott in their individual capacities are

derived from Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S.

388, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971). In B ivens

, the Supreme Court held that money damages

may be recovered against a federal official for violation of a plaintiff’s constitutional rights. I d. at

397. In order for a plaintiff to pro ve a B ivens claim the plaint iff must demonstrate that they were

deprived of a constitutional right. S ee Emplanar, Inc. v. Marsh

, 11 F.3d 1284, 1295 (5 th Cir. 1994)

(citing Zerinial v. United States , 714 F.2d 431, 435 (5 th Cir. 1993)) (emphasis added).

Hagan contends that Coggins and Scott violated his Fourth Amendment right to be free from

unreasonable searches and seizures. Hagan’s specific contention is that his Fourth Amendment rights

were violated by the defendants’ attem pts to entrap him and the wrongful levy of taxes against his4

wife. This court has specifically rejected the argument that the government should have reasonable

suspicion that an indi vidual is involved in some illegality before targeting him in a sting operation.

See United States v. Allibhai

, 939 F.2d 244, 249 (5 th Cir. 1991). We have also held that a wrongful

levy by the I.R.S. does not violate due process, "so long as th ere is an adequate opportunity for

post-collection review." B addour, Inc. v. United States

, 802 F.2d 801, 807 (5th Cir.1986); see also

,

Morales v. Haynes

, 8 90 F.2d 708, 710 (5 t h Cir. 1989). Therefore, because Hagan’s allegations

against Coggins and Scott do not amount to a viable claim of any violation of constitutional rights,

the district court properly granted summary judgment on the claims against Coggins and Scott in their

individual capacities.

III. Claims Against Defendants in their Official Capacities

The remainder of Hagan’s claims are against Coggins and Scott in their official capacities.

Specifically Hagan contends that the defendants used their “influence” and authority as United States

Attorney and Regional Director for t he IRS, respectively, to engage in “multiple entrapment

attempts” and “political ” audits of his two largest clients. When there is an action against an

individual defendant for their actions taken in their official capacity as agents of the United States,

that suit is one against the United States itself. See Drake v. Panama Canal , 907 F.2d 532, 534 (5 th

Cir. 1990 ) (citing Simons v. Vinson

, 394 F.2d 732 (5th Cir.), cert. denied, 393 U.S. 968, 89 S.Ct.

398, 21 L.Ed.2d 379 (1968)). (stating that sovereign immunity extends to the government’s officers

and agencies). The United States may not be sued except to the extent it has consented to such a

suit by statute. S ee United States v. Testan , 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d

114 (1976); Smith v. Booth

, 823 F.2d 94, 96 (5th Cir.1987). A waiver of sovereign immunity cannot

be implied, but must be unequivocally expressed. S ee Shanbaum v. United States

, 32 F.3d 180, 182

(5 th Cir. 1994). In the present case there is no indication that the United States has waived it s

immunit y. Therefore, the allegations against Coggins and Scott for actions undertaken while acting5

as agents of the United States are barred by sovereign immunity.

IV. Discovery

Finally, Hagan argues that the district court erred by not allowing him to conduct discovery

prior to entering summary judgment in favor of the defendants. The district court ’s decision to

proceed to summary judgment without allowing further discovery is reviewed for abuse of discretion.

See Enplanar , 11 F.3d at 1291 (citations omitted). The Supreme Court has previously determined

that bare allegations of malice should not suffice to subject government officials either to the costs

of trial or to the burdens of broad-reaching discovery. S ee Harlow v. Fitzgerald

, 457 U.S. 800, 817,

102 S.Ct. 27 27, 2738-457, 73 L.Ed. 2d 396 (1982). Thi s court has al so concl uded that the

protecti on afforded by official immunit y is not merely immunit

y from payment of

damages for

discretionary actions taken in the good faith performance of official duties but also freedom from the

burden of standing t rial or even unnecessary discovery in cases in which liability is foreclosed as a

matter of law. Lynch v. Cannate lla , 810 F.2d 1363, 1369 (5 t h Cir. 1987). Thus, because Hagan’s

claims against the defendants were foreclosed as a matter of law because he was unable to assert any

constitutional violation committed by Coggins and Scott, and their official actions were protected by

sovereign immunity, the district court properly limited discovery in this matter.

CONCLUSION

We find that the district court properly granted summary judgment in favor of Coggins and

Scott in both their individual and official capacities. Furtherm ore, the district court di d not err i n

limiting discovery.

AFFIRMED.