Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 1

388 (1971).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40357

ANTHONY BOYD

Plaintiff - Appellant

v.

JOE D. DRIVER, et al.

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Anthony Boyd, a federal prisoner, filed a Bivens action against numerous 1

prison employees alleging that they initiated criminal charges against him based

on two October 2004 assaults between Boyd and prison staff. Boyd reported the

assaults to the Bureau of Prisons Regional Office claiming that he was the

victim and that video evidence corroborates his view and shows that he was

handcuffed. After Boyd’s report, prison employees gave statements regarding

the assaults that resulted in an indictment against Boyd. He was tried and

acquitted in federal court.

United States Court of Appeals

Fifth Circuit

F I L E D

August 13, 2009

Charles R. Fulbruge III

Clerk
No. 08-40357

 The district court reached the merits after declining to rule on whether Boyd had 2

exhausted prison administrative remedies and the government now raises the exhaustion

issue on appeal. The applicable exhaustion provision applies only to suits “brought with

respect to prison conditions.” 42 U.S.C. § 1997e(a). In Porter v. Nussle, 534 U.S. 516, 532

(2001), the Court held that the "exhaustion requirement applies to all inmate suits about

prison life, whether they involve general circumstances or particular episodes, and whether

they allege excessive force or some other wrong." Despite that sweeping definition of prisoner

claims that must be exhausted, and although the claimed assault by Boyd is relevant to his

claim, the claim itself is for perjury and tampering with evidence in a federal court proceeding

and thus does not qualify, under the ordinary meaning ofthe term, as being "about prison life."

The exhaustion requirement does not bar Boyd's action.

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The district

3

court also stated it dismissed the action as frivolous, citing 28 U.S.C. § 1915(e) and 28 U.S.C.

§ 1915A. Our review when both of these statutes are referred to remains de novo. Gieger v.

Jowers, 404 F.3d 371, 373 (5th Cir. 2005).

See Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003) (holding that “[i]n

4

determining whether to grant a motion to dismiss, the district court must not go ‘outside of

the pleadings’” except for in the limited exception where documents that are “referred to in the

plaintiff’s complaint and are central to the plaintiff’s claim” are attached to a motion to

dismiss).

2

Boyd’s instant complaint alleges that prison employees committed perjury

at his assault trial and destroyed and tampered with video evidence showing he

was the victim of the assaults. He labels his cause of action as a “malicious

prosecution conspiracy.”

The district court granted the defendants’ motion to dismiss. It ruled that

Boyd could not show that the criminal action was brought against him without

probable cause because records indicating that Boyd was administratively

disciplined for one of the assaults, along with the fact that Boyd was indicted by

a grand jury, sufficiently established the probable cause element of malicious

prosecution.2

We review a district court’s grant of a motion to dismiss de novo. While 3

we disagree with the district court’s use of documents “outside of the pleadings,”

in deciding to grant the motion to dismiss, we need not elaborate on that point 4

as the malicious prosecution claim fails nonetheless. Because “the assertion of
No. 08-40357

5 Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir. 2003) (en banc). Although the claim

in Castellano was brought under § 1983, while Boyd invokes Bivens, the constitutional torts

authorized by each are coextensive. See Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir.

2005); Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir.1999) (“A Bivens action is analogous to

an action under § 1983—the only difference being that § 1983 applies to constitutional

violations by state, rather than federal, officials.”).

See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“The handwritten pro se document is 6

to be liberally construed.”).

Castellano, 352 F.3d at 942. 7

3

malicious prosecution states no constitutional claim,” that claim alone does not

support a Bivens action.5

However, Boyd’s handwritten pro se complaint includes allegations

supporting a direct due process claim. Boyd claims that prison employees gave 6

perjured testimony at his criminal trial and destroyed and tampered with video

evidence of the alleged assaults. While a malicious prosecution claim does not

inevitably entail constitutional deprivation, the government’s “manufacturing

of evidence and knowing use of that evidence along with perjured testimony to

obtain a wrongful conviction deprives a defendant of his long recognized right to

a fair trial secured by the Due Process Clause.” The allegations in Boyd’s 7

complaint give rise to claims of direct constitutional deprivation that support a

Bivens action. We express no view on the validity of any of Boyd's claims, on the

accuracy of his factual allegations, or on what decisions the district court should

make on remand. 

AFFIRMED in part; REVERSED and REMANDED in part.