* This order and judgment is not binding precedent, e xcept under the doctrines of

law of the case, res judicata, and collateral estop pel. 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause 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., Independen ce House, the Federal Bureau of

### -2-

Prisons, and the U. S. Department of Justice. Ms. Lattimore alleges that when she was a resident at the Independence House, a halfway hou se in Denver, Colorado, she was harassed by staff members, other residents, and a f ederal officer. She alleges that Independence House is owned by RKK Enterprises, Inc ., and that it is a federallyfunded halfway house program. The district court d ismissed her complaint as legally frivolous under 28 U.S.C. § 1915(d). In her complaint, Ms. Lattimore alleged that she co mplained to Phil Gilliland, an Independence House staff member, that a male reside nt at the house was intoxicated and sexually harassed her. She then reported further i nappropriate behavior of residents and staff members to Mike Fuhriman, director of Indepen dence House, and Gail Wilson, a Bureau of Prisons staff member. She claimed that f irearms, drugs, papers, and cellular phones were being used at the house; she alleged th at 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 bl ack 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 co mplaints, and that Mr. Fuhriman and Patricia Wiemers, an Independence House staff m ember, took retaliatory acts in the form of erroneous incident reports against her afte r she reported the misconduct at the house. She also alleged that Ace Fuji, a federal c ommunity 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 obtain ed 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, h owever, 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. 

### -3- Finally, after Ms. Lattimore reported the misconduc t to Walter Hamlett, a pretrial services officer, and the office of Congresswoman P atricia Schroeder, she was removed from the halfway house. Three Independence House s taff members, including Mr. Fuhriman, were allegedly terminated after an invest igation. In her complaint, Ms. Lattimore sought money damages and an injunction se eking 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 faile d 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 Bivens 1 or the U. S. Constitution in her complaint, her fa ilure to cite proper legal authority does not require dismis sal 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

### -4-

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 t aken against her by federal actors after she exercised her free speech rights b y 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 bytransferring him to another institution). The alleged retaliatory actions in this case--the writing of erroneous incident reports against Plaintiff--are similar to those in Frazierbecause 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 cons titutional claim. The district court was correct, however, in ruling that Ms. Lattimore cannot sue the United States through the Federal Bureau of Pri sons 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 Bi vens action cannot be implied directly against federal a gencies). Ms. Lattimore made no showing that the United States has waived its sover eign immunity by consenting to being sued. Moreover, while Ms. Lattimore did suff iciently allege conduct by federal2

### “This court has repeatedly insisted that pro se p arties ‘follow the same

rules of procedure that govern other litigants.’” N ielsen 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 p rivate party federal actors may be liable under Bivens but not deciding the issue), cert. denied , 498 U.S. 1074 (1991). -5- 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 challen ged conduct. 3 Accordingly, we
AFFIRM the dismissal. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge