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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAMES MICHAEL MURRAY,

Plaintiff,

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v. Case No. 3:22-cv-01618-E-BT

UNITED STATES OF AMERICA, 

and the FEDERAL BUREAU OF 

PRISONS,

Defendants.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court in this pro se prisoner case is Defendants United States of 

America and Federal Bureau of Prison’s (BOP) (collectively, the “Defendants”)

Rule 12(b)(1) Motion to Dismiss in part Plaintiff’s Amended Complaint (ECF No. 

25). This case was referred to the United States Magistrate Judge pursuant to 28 

U.S.C. § 636(b). See ECF No. 1. For the reasons stated, the Court should GRANT 

the Motion, DISMISS all of Plaintiff’s claims against the BOP, and DISMISS 

Plaintiff’s Eighth Amendment claim against the United States. Plaintiff’s Federal 

Tort Claims Act (FTCA) claim against the United States should proceed.

Background1

1 In view of the Plaintiff’s pro se status, the Court draws the relevant facts from

Plaintiff’s original complaint, his response to the magistrate judge’s questionnaire, 

and his amended complaint. See Compl. (ECF No. 3); Resp. Q. (ECF No. 9); Am. 

Compl. (ECF No. 7).

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Plaintiff alleges that he was incarcerated at Federal Correctional Institute 

(FCI) Seagoville from February 2021 to November 2021. Am. Compl. 4; Resp. Q. 1. 

On or around October 4, 2021, Plaintiff injured his left hand. Resp. Q. 2. He alerted 

the nurses to his swollen hand several times and requested x-rays or other 

treatment, but he received no treatment or medication. Resp. Q. 3. 

In November 2021, Plaintiff alleges he was released to a halfway house in 

Hutchins, Texas, operated by Volunteers of America (VOA). Compl. 2. A VOA 

nurse examined his hand and sent him to Parkland Hospital in Dallas, Texas. 

Compl. 2. Hospital employees informed him that his finger was “severely 

dislocated” and that he needed surgery. Compl. 2. He received surgery on his finger 

on December 6, 2021. Compl. 2; Resp. Q. 4.

Prior to his surgery, Plaintiff spoke with a hospital surgeon who allegedly 

informed him that his “hand should have been repaired 5 or 6 weeks earlier when 

the injury occurred.” Compl. 2. Plaintiff states that, in the surgeon’s view, he would 

never be able to bend his finger again because “the joint had already fused in the 

weeks before with [his] neglected medical care.” Compl. 3. Plaintiff’s finger 

continues to be impaired; the use of his finger continues to be “very limited,” 

Compl. 3, and “the tip of [his] finger bends permanently forward [while] [t]he 

middle joint will not bed at all,” Resp. Q. 5. After the surgery, the VOA alerted the 

BOP about the surgery costs, and the BOP paid the $35,000 hospital bill. Resp. Q. 

4.

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Plaintiff filed a claim with the BOP for the damage to his left hand pursuant 

to the FTCA, which was denied on June 13, 2022. Resp. Q. 7. After the denial, 

Plaintiff filed this lawsuit against the United States and the BOP, alleging damages

under the FTCA and violations of the Eighth Amendment. Am. Compl. 3. He seeks

$32,000 in damages for the purported permanent injury to his finger. Am. Compl. 

8; Resp. Q. 8. Defendants filed their Motion to Dismiss, asking the Court to 

dismiss—under Rule 12(b)(1) of the Federal Rules of Civil Procedure—all of 

Plaintiff’s claims against the BOP, as well as Plaintiff’s Eighth Amendment claims 

against the United States. Mot. Dismiss (ECF No. 25). Defendants do not seek 

dismissal of any of Plaintiff’s claims against the United States under the FTCA. 

Mot. Dismiss 2.

Legal Standard

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil 

Procedure challenges a federal court’s subject matter jurisdiction. See Fed. R. Civ. 

P. 12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction 

conferred by statute, they lack the power to adjudicate claims. See Stockman v. 

Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). The Fifth Circuit 

recognizes a distinction between a “facial attack” and a “factual attack” upon a 

complaint's subject matter jurisdiction. Rodriguez v. Tex. Comm'n on the Arts, 992 

F. Supp. 876, 878 (N.D. Tex. 1998). “A facial attack requires the court merely to 

decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction” 

by examining the allegations in the complaint, which are presumed to be true. Id.

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(citation omitted). If the defendant supports the motion with evidence, however, 

then the attack is “factual,” and “no presumptive truthfulness attaches to plaintiff's 

allegations, and the existence of disputed material facts will not preclude the trial 

court from evaluating for itself the merits of jurisdictional claims.” Williamson v. 

Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of the attack, “[t]he plaintiff 

constantly bears the burden of proof that jurisdiction does exist.” Rodriguez, 992 

F. Supp. at 879 (“The burden of proof for a Rule 12(b)(1) motion to dismiss is on 

the party asserting jurisdiction.” (citation omitted)).

Here, Defendants’ Motion makes a facial attack on the Court's subject matter 

jurisdiction. Defendants did not submit evidence in support of their assertion that 

the Court lacks subject matter jurisdiction over Plaintiff’s claim, and Defendants 

argue that Plaintiff’s jurisdictional claim fails on legal, not factual, grounds. Thus, 

all of Plaintiff’s factual allegations will be accepted as true for the purpose of 

determining whether the Court has jurisdiction over his claims.

Analysis

I. Claims Against the BOP

Defendants first move to dismiss any claims against the BOP because “a 

federal agency is not a proper defendant in an FTCA claim.” Br. Mot. Dismiss 3. In 

his response, Plaintiff states that he “ha[s] no objection to the government’s 

motion to dismiss in part” and that he “agree[s] to dismiss the claim against the 

[BOP].” Resp. 1 (ECF No. 29).

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By enacting the FTCA, Congress waived the United States’ sovereign 

immunity for claims arising from torts committed by federal employees. 28 U.S.C. 

§§ 1346(b)(1), 2671-2680; Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 

(2008). To successfully sue under the FTCA, a plaintiff must bring a claim: (1) 

against the United States; (2) for money damages; (3) for injury or loss of property, 

or personal injury or death; (4) caused by the negligent or wrongful act or omission 

of any employee of the federal government; (5) while acting within the scope of his 

or her employment; and (6) under circumstances where the United States, if a 

private person, would be liable to the plaintiff in accordance with the state law 

where the act or omission occurred. 28 U.S.C. § 1346(b); FDIC v. Meyer, 510 U.S. 

471, 477-78 (1994).

To the extent Plaintiff brings his claims under the FTCA, the BOP is not a 

proper defendant. The FTCA does not authorize claims against an agency or a 

government employee in his or her individual capacity. See 28 U.S.C. § 2679(a); 

Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988). 

Instead, a suit against the United States under the FTCA is the exclusive remedy 

for tort claims arising from the actions of government agencies or employees. 

Galvin, 860 F.2d at 183. An FTCA claim against a federal agency or employee in 

his individual capacity, as opposed to the United States itself, must be dismissed 

for want of jurisdiction. Id.; see also Toledo v. Bureau of Prisons, 238 F. App’x 10, 

11 (5th Cir. 2007) (affirming dismissal of plaintiffs’ claims against BOP under the 

FTCA, because the only proper defendant under the FTCA is the United States). 

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Therefore, the Court should grant the Defendants’ motion to dismiss all of 

Plaintiff’s claims against the BOP.

II. Eighth Amendment Claim 

Defendants also move to dismiss Plaintiff’s Eighth Amendment claims 

against the United States and the BOP. Br. Mot. Dismiss 5. Defendants state that 

alleged constitutional violations are “barred by the doctrine of sovereign 

immunity” and that the United States has not waived immunity. Br. Mot. Dismiss 

5. Plaintiff responds that he “oppose[s] the Defendant’s Motion” because “[t]he 

Eighth Amendment of the Constitution protects prisoners from cruel and unusual 

punishment.” Resp. 1.

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

403 U.S. 388 (1971), the “Supreme Court recognized an implied right of action for 

damages against federal officers alleged to have violated a citizen’s constitutional 

rights.” Byrd v. Lamb, 990 F.3d 879, 881 (5th Cir. 2021) (per curiam). However, 

the availability of a Bivens claim arises only in limited circumstances. Byrd, 990 

F.3d at 882. The Fifth Circuit recently confirmed that Bivens claims are currently

recognized in only the following factual situations: “(1) manacling the plaintiff in 

front of his family in his home and strip-searching him in violation of the Fourth 

Amendment,” (2) “discrimination on the basis of sex by a congressman against a 

staff person in violation of the Fifth Amendment,” and (3) “failure to provide 

medical attention to an asthmatic prisoner in federal custody in violation of the 

Eighth Amendment.” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (citations 

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omitted). And “[t]he Supreme Court has cautioned against extending Bivens to 

new contexts.” Byrd, 990 F.3d at 881 (first citing Hernandez v. Mesa, 140 S. Ct. 

735, 744 (2020) (holding that the plaintiff's Bivens claim arose in a new context, 

and factors, including the potential effect on foreign relations, counseled hesitation 

with respect to extending Bivens); and then citing Ziglar v. Abbasi, 137 S. Ct. 1843, 

1861 (2017) (holding that plaintiff's detention-policy claims arose in a new Bivens

context, and factors, such as interfering with sensitive Executive-Branch functions 

and inquiring into national-security issues, counseled against extending Bivens)). 

“In fact, the Supreme Court has gone so far as to say that extending Bivens

to new contexts is a ‘disfavored’ judicial activity.” Byrd, 990 F.3d at 881 (first citing 

Abbasi, 137 S. Ct. at 1857; and then quoting Iqbal, 556 U.S. at 675). Indeed, the 

Supreme Court has recently affirmed its distaste for extending Bivens, stating that 

“in all but the most unusual circumstances, prescribing a cause of action is a job 

for Congress, not the courts.” Egbert v. Boule, 142 S. Ct. 1793, 1800 (2022).

Even so, a Bivens action is meant “‘to deter the officer,’ not the agency.” 

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (quoting Meyer, 510 U.S. 

471, 485 (1994)). “Allowing a Bivens claim against federal agencies ‘would mean 

the evisceration of the Bivens remedy, rather than its extension.’” Meyer, 510 U.S. 

at 485. The Fifth Circuit provides that “[Bivens] action[s] against the United 

States, the BOP, or BOP officers in their official capacities . . . are barred by the 

doctrine of sovereign immunity.” Gibson v. Fed. Bureau of Prisons, 121 F. App’x 

549, 551 (5th Cir. 2004); see Jackson v. C.T., 2022 WL 3580773, at *2 (N.D. Tex. 

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July 14, 2022) (Ramirez, J.) (noting that a Bivens action “does not provide for a 

cause of action against a federal agency or the United States”), adopted by 2022 

WL 6225568 (N.D. Tex. Oct. 7, 2022) (Fitzwater, J.).

Here, Plaintiff attempts to bring a Bivens action against the United States

and the BOP for monetary damages relating to his injuries to his left hand. But the 

United States and the BOP enjoy sovereign immunity as to Plaintiff’s constitutional 

violation claims. Therefore, Plaintiff’s claims against the United States and the 

BOP for any Eighth Amendment violations should be dismissed.

Recommendation

The Court should GRANT Defendants’ Motion to Dismiss in part, and 

DISMISS all of Plaintiff’s claims against the BOP, as well as Plaintiff’s Eighth 

Amendment claim against the United States.

SO ORDERED.

July 14, 2023.

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in 

the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted 

by the district court, except upon grounds of plain error. See Douglass v. United 

Svcs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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