United States Court of Appeals

for the Fifth Circuit

No. 19-60299

Summary Calendar

Carl R. Brown, 

Plaintiff—Appellant,

versus

T. Brown; C. Trotter; C. Murtaugh; O. Elery; Mr. 

Denise, Supervisor, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:16-CV-830

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Carl R. Brown, former federal prisoner # 39138-044, appeals the 

dismissal of his suit against five federal prison employees for violating his 

Fifth Amendment right to equal protection by discriminating against him on 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2021

Lyle W. Cayce

Clerk

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the basis of his religion, Hebrew Israelite, at his job in the prison. The district 

court granted the defendants’ motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6) and 12(b)(1), concluding that Brown’s claim presented a 

new context for a claim under Bivens v. Six Unknown Named Agents of the 

Federal Bureau of Narcotics, 403 U.S. 388 (1971), and that special factors 

counseled against extending Bivens to imply a remedy for a prisoner’s 

employment discrimination claim against his federal jailers. 

Brown raises five issues on appeal. “We review a dismissal on the 

pleadings under Rules 12(b)(1) or 12(b)(6) de novo, accepting all wellpleaded facts as true and viewing those facts in the light most favorable to the 

plaintiffs.” Haddock v. Tarrant Cnty., Texas, 986 F.3d 893, 897 (5th Cir. 

2021) (internal quotation marks and citation omitted); Stratta v. Roe, 961 

F.3d 340, 349 (5th Cir. 2020). 

First, Brown argues that the Prisoner Litigation Reform Act (PLRA) 

is unconstitutional because it permitted the district court to deny his claim 

for damages due to his lack of physical injury. Brown misunderstands the 

district court’s ruling. The district court did not “concede[]” that Brown 

stated a valid claim for relief, as he asserts; it concluded that he did not state 

a claim for relief under Bivens.

It is this decision, the basis for the district court’s dismissal, that 

Brown challenges second. He argues that he stated a cognizable claim for 

relief based on the defendants’ violating his right to be free from 

discrimination based on his religion. However, the district court concluded 

that his case presented a Bivens claim in a new context, and it listed special 

factors, including the availability of the administrative remedy program, the 

limitations imposed by the PLRA, and Congress’s silence on prisoner 

employment claims and exclusion of religious discrimination claims under 

Title VII of the Civil Rights Act of 1964. Because Brown does not challenge 

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these conclusions, we consider these issues to be abandoned. See Yohey v. 

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. 

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Brown also argues 

that he has a constitutionally protected interest in freedom from 

discrimination based on 28 C.F.R. § 551.90. However, Brown did not argue 

in the district court that he had a private right of action against the defendants 

based on § 551.90, and we will not address it now. Ball v. LeBlanc, 792 F.3d 

584, 596 n.8 (5th Cir. 2015).

Third, Brown complains that the district court did not allow him to 

amend his complaint to seek nominal or punitive damages. “Generally a 

district court errs in dismissing a pro se complaint for failure to state a claim 

under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.”

Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020) (internal 

quotation marks and citation omitted). “Although leave to amend should be 

freely give[n] ... when justice so requires, a district court may refuse leave to 

amend if the filing of the amended complaint would be futile, i.e., if the 

complaint as amended would be subject to dismissal.” Varela v. Gonzales, 

773 F.3d 704, 707 (5th Cir. 2014) (internal quotation marks and citation 

omitted). Because the district court determined that amendment would be 

futile, we review that decision de novo. Id. We conclude that, as Brown did 

not state a claim for relief under Bivens, the district court did not err by 

concluding that amending his complaint to request different unavailable 

damages would have been futile. See id.

Fourth, Brown argues that the district court should have construed his 

complaint against the defendants in their individual capacities. The district 

court decided that, to the extent Brown intended to sue the defendants in 

their official capacities, the claims were barred by the doctrine of sovereign 

immunity. Then, it construed his claim against the defendants in their 

individual capacities and considered the questions instructed by the Supreme 

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Court in Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017), ultimately declining to 

extend Bivens relief to this novel context. Thus, this claim lacks merit.

Last, Brown argues that the district court should have permitted him 

to subpoena the defendants and should have held an evidentiary hearing. 

However, a district court does not err by dismissing a complaint without 

permitting discovery if the complaint fails to allege facts sufficient to suggest 

that discovery would reveal evidence in support of a viable claim. See Quinn 

v. Guerrero, 863 F.3d 353, 365 (5th Cir. 2017). Furthermore, there is no 

requirement that a district court conduct a hearing before dismissal. Alderson 

v. Concordia Par. Corr. Facility, 848 F.3d 415, 423 n.10 (5th Cir. 2017). As the 

district court accepted Brown’s factual allegations and Brown has not 

explained how the lack of a hearing prevented him from adequately 

presenting his claim, any error in the district court’s failing to hold a hearing 

was harmless. See Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). 

In light of the foregoing, the judgment of the district court is 

AFFIRMED.

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