*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited

under the terms and conditions 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 7/9/96

TENTH CIRCUIT

GEORGETTE J. LATTIMORE,

Plaintiff-Appellant,

v.

RKK ENTERPRISES INC.;

INDEPENDENT HALFWAY HOUSE;

FEDERAL BUREAU OF PRISONS, U.S.

Department of Justice, North Central

Regional Office,

Defendants-Appellees.

No. 95-1333

(D.C. No. 95-S-501)

(Dist. Colo.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered

submitted without oral argument.

Plaintiff Georgette J. Lattimore, acting pro se and in forma pauperis, brought this

complaint against RKK Enterprises, Inc., Independence House, the Federal Bureau of
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Prisons, and the U. S. Department of Justice. Ms. Lattimore alleges that when she was

a resident at the Independence House, a halfway house in Denver, Colorado, she was

harassed by staff members, other residents, and a federal officer. She alleges that

Independence House is owned by RKK Enterprises, Inc., and that it is a federallyfunded halfway house program. The district court dismissed her complaint as legally

frivolous under 28 U.S.C. § 1915(d).

In her complaint, Ms. Lattimore alleged that she complained to Phil Gilliland, an

Independence House staff member, that a male resident at the house was intoxicated and

sexually harassed her. She then reported further inappropriate behavior of residents and

staff members to Mike Fuhriman, director of Independence House, and Gail Wilson, a

Bureau of Prisons staff member. She claimed that firearms, drugs, papers, and cellular

phones were being used at the house; she alleged that staff members accepted gifts from

residents in exchange for special privileges; and, she alleged that Mr. Gilliland, while

on duty, had himself photographed “in questionable physical positions” with two female

residents who wore “lingerie (black teddies) and black mini skirts on the corners of

Filmore and Colfax, Denver, Colorado,” R., Vol. I, No. 3 (Complaint, ¶ 1). She claims

Mr. Fuhriman and Ms. Wilson failed to act on her complaints, and that Mr. Fuhriman

and Patricia Wiemers, an Independence House staff member, took retaliatory acts in the

form of erroneous incident reports against her after she reported the misconduct at the

house. She also alleged that Ace Fuji, a federal community corrections manager for the

Eastern District of California, participated in the retaliatory acts against her.
1

 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In Bivens, the

Supreme Court recognized that damages may be obtained for constitutional injuries by

federal officials. Id. at 395-97. The district court characterized Plaintiff’s action as a

42 U.S.C. § 1983 civil rights action. Plaintiff, however, neither cited to § 1983 nor

makes allegations of a state actor acting under the color of state law. Plaintiff’s action

is more accurately characterized as a Bivens action because her complaint concerns only

federal actors acting under the color of federal law.

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Finally, after Ms. Lattimore reported the misconduct to Walter Hamlett, a pretrial

services officer, and the office of Congresswoman Patricia Schroeder, she was removed

from the halfway house. Three Independence House staff members, including Mr.

Fuhriman, were allegedly terminated after an investigation. In her complaint, Ms.

Lattimore sought money damages and an injunction seeking to close Independence

House.

The district court ruled that Ms. Lattimore failed to raise a federal constitutional

issue or to factually state a claim, that she failed to allege personal involvement of the

Defendants in constitutional violations, and that the claims against the Department of

Justice and the Bureau of Prisons are barred by the doctrine of sovereign immunity. 

The court also denied Ms. Lattimore’s request for the appointment of counsel as moot.

We must liberally construe Ms. Lattimore’s complaint because she is

representing herself. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Although Ms.

Lattimore did not cite Bivens1

 or the U. S. Constitution in her complaint, her failure to

cite proper legal authority does not require dismissal if we can reasonably read her

pleadings to state a valid claim. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). “[W]henever a plaintiff states an arguable claim for relief, dismissal for
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frivolousness under § 1915(d) is improper, even if the legal basis underlying the claim

ultimately proves incorrect.” McKinney v. State of Okla. Dep’t of Human Servs., 925

F.2d 363, 365 (10th Cir. 1991). 

Ms. Lattimore alleged that retaliatory action was taken against her by federal

actors after she exercised her free speech rights by reporting the misconduct of residents

and staff members of the Independence House. These allegations state a cause of action

under Bivens for a First Amendment violation. See Frazier v. Dubois, 922 F.2d 560,

561-62 (10th Cir. 1990) (holding that under Bivens prison officials may not punish an

inmate for exercising his First Amendment rights by transferring him to another

institution). The alleged retaliatory actions in this case--the writing of erroneous

incident reports against Plaintiff--are similar to those in Frazier because they resulted in

the Plaintiff’s removal from the halfway house. Thus the district court was incorrect in

holding that Ms. Lattimore failed to set out a constitutional claim. 

The district court was correct, however, in ruling that Ms. Lattimore cannot sue

the United States through the Federal Bureau of Prisons absent a showing that the

United States has consented to being sued. United States v. Testan, 424 U.S. 392, 399

(1976); see also FDIC v. Meyer, 114 S. Ct. 996, 1005-06 (1994) (holding that a Bivens

action cannot be implied directly against federal agencies). Ms. Lattimore made no

showing that the United States has waived its sovereign immunity by consenting to

being sued. Moreover, while Ms. Lattimore did sufficiently allege conduct by federal
2

 “This court has repeatedly insisted that pro se parties ‘follow the same

rules of procedure that govern other litigants.’” Nielsen v. Price, 17 F.3d 1276,

1277 (10th Cir. 1994) (citation omitted).

3

 We express no opinion on whether a Bivens claim could be maintained

against these defendants if the requisite personal participation had been alleged. 

See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714, 720 n.5

(10th Cir. 1988) (noting circuit split on whether private party federal actors may

be liable under Bivens but not deciding the issue), cert. denied, 498 U.S. 1074

(1991).

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actors, she did not name those actors as defendants.

2

 Further, we agree with the district

court that she failed to allege that the remaining named defendants, RKK Enterprises

and Independence House, participated in the challenged conduct.3 Accordingly, we

AFFIRM the dismissal. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge