DLD-390 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1897

___________

JOSE NAVARRETE,

 Appellant

v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS, Warden;

FEDERAL CORRECTIONS INSTITUTION; LOUISIANA STATE UNIVERSITY; 

BARNES AND NOBLE BOOK STORE, Owner, Louisiana State University; 

EDUCATION SUPERVISOR

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-09-cv-03683)

District Judge: Honorable Jerome B. Simandle

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 15, 2013

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: September 3, 2013)

_________

OPINION

_________
PER CURIAM

Jose Navarrete, a federal inmate confined at the Federal Correctional Institution at 

Fort Dix, New Jersey (FCI-Fort Dix), appeals from an order of the District Court granting 

defendant’s motion for summary judgment. Navarrete also appeals the District Court’s 

denial of his motion for reconsideration. For the reasons that follow, we will summarily 

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

Navarrete commenced this action against the United States of America, the 

Federal Bureau of Prisons (“FBOP”), the Warden of FCI-Fort Dix, the Education 

Supervisor at FCI-Fort Dix, the President of Louisiana State University (“LSU”), and the

owner of the Barnes & Noble Book Store at LSU.1 He alleged that, while incarcerated, 

he enrolled in a correspondence course at LSU, but that the mailroom at FCI-Fort Dix 

improperly refused delivery of his course textbooks. As a result, he was unable to 

complete the course. In his complaint, Navarrete asserted that defendants violated his 

rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments, and unspecified 

state laws. 

The District Court dismissed sua sponte for failure to state a claim, all of 

Navarrete’s claims except his First and Fifth Amendment claims against the Warden of 

 

1 Although Navarrete sought relief under 42 U.S.C. § 1983, the District Court construed 

his suit as an action under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 

388 (1971), not § 1983, because it involved federal (and alleged federal) actors rather 

than state actors. See Bivens, 403 U.S. at 389 (recognizing a private cause of action to 

recover damages against federal actors for constitutional violations). 
FCI-Fort Dix. Following discovery, the District Court granted the Warden’s motion for 

summary judgment on Navarrete’s remaining claims. Navarrete filed a motion for 

reconsideration, which the District Court denied. This appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District 

Court’s dismissal for failure to state a claim, as well as its grant of summary judgment, is 

plenary. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).

We determine that the District Court properly dismissed any Bivens claims 

against the United States, FBOP, and FCI–Fort Dix.

2

 See Corr. Servs. Corp. v. Malesko, 

534 U.S. 61, 72 (2001) (holding that Bivens claims may only be brought against 

individual federal officers, not the United States or its agencies).3 Navarrete’s 

constitutional claims against LSU and the Barnes and Noble bookstore, both private 

entities, were also properly dismissed. Corr. Servs. Corp., 534 U.S. at 71. Moreover, as 

the District Court noted, Barnes and Noble issued Navarrete a refund after the store 

received the returned books. We also agree, for the reasons given by the District Court,

 

2 We construe Navarrete’s notice of appeal as also challenging the District Court’s earlier 

order dismissing some of his claims.

3

To the extent that the complaint could be construed as attempting to assert a claim under 

the Federal Tort Claims Act (“FTCA”), we agree with the District Court that it did not 

have subject matter jurisdiction under the FTCA. A claim may not be brought pursuant 

to the FTCA unless the plaintiff has first exhausted his administrative remedies. See

White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir. 2010) (quoting 28 U.S.C.

§ 2675(a)). This requirement “is jurisdictional and cannot be waived.” Roma v. United 

States, 344 F.3d 352, 362 (3d Cir. 2003) (citation omitted). Navarrete does not claim to 

have availed himself of, let alone exhausted, available administrative remedies.
that Navarrete failed to allege any facts demonstrating the denial of any rights under the

Fourth, Eighth, or Fourteenth Amendments.

We further conclude that the District Court properly granted the Warden of FCIDix’s motion for summary judgment on Navarrete’s First and Fifth Amendment claims. 

Even assuming that the return of Navarrete’s course textbooks violated his First and Fifth 

Amendment rights, he did not set forth any evidence upon which a jury could conclude

that the Warden had any personal involvement in that decision, and a Bivens claim

cannot be premised upon a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 

662, 675-77 (2009); Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 

71-72 (3d Cir. 2011). 

Finally, the District Court did not abuse its discretion in denying Navarrete’s 

motion for reconsideration, as it did not include any of the grounds required for 

reconsideration. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per 

curiam) (Rule 59 motion “must rely on one of three grounds: (1) an intervening change in 

controlling law; (2) the availability of new evidence; or (3) the need to correct clear error 

of law or prevent manifest injustice”).