UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ HERBERT GRAYSON HAYES, Plaintiff - Appellant,

v. JOHN DOE, JOHN DO E, JOHN DOE, and JOHN DOE, Defendants - Appellees. No. 23-1330 (D.C. No. 1:23-CV -01718-LTB-SBP) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BRISCOE , and EID , Circuit Judges.

________________ _________________ Herbert Hayes, a federal prisoner curre ntly confined at the United States Penitentiary in Florence, Colorado (USP Floren ce), filed this pro se civil rights action against four unnamed employees of a fede ral prison in California where Hayes was previously confined. The district court granted Hayes leave to proceed in forma pauperis, but later sua spont e dismissed Hayes’s compla int as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Hayes now appeals and seeks leave to

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 24, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 12 proceed on appeal in forma pauperis. Ex ercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the di strict court and deny Hayes’s request to proceed on appeal in forma pauperis.
I On June 21, 2023, Hayes initiated thes e federal proceedings by filing a pro se motion for appointment of couns el. The magistrate judge denied that motion without prejudice, concluding that it was “premature because the case remain[ed] under initial review.” ECF No. 6. On August 21, 2023, Hayes filed a mo tion for leave to proceed in forma pauperis, as well as a complaint seeking money damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). The complaint listed four “John Does ” as defendants, all in thei r official capacities; these defendants, according to th e complaint, were employees at the United States Penitentiary in Victorville, California (USP Victorville). The complaint alleged that on September 30, 2021, while Hayes was “pre paring [him]self for [his] daily prayer in [his] cell,” an unknown unit officer approached hi m and “patted [him] down outside of [his] cell.” ROA at 7. After the search, Hayes ente red his cell “to grab [his religious] books and prayer rug.” Id . The unit officer a llegedly “asked to see [Hayes’s] religious books.” Id . Hayes “told [the unit o fficer] respectfully that he wasn’t in purification to t ouch [the] religi ous items.” Id . Hayes then walked out of his cell, but allegedly dropped his “relig ious book” on the floor as he did so. Id . As Hayes reached down to pick up the book, the unit officer allegedly “reached around Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 23 [Hayes’s] neck while [he] was bent over and placed [him] in a rear naked [sic] choke.” Id . Hayes allegedly began to lose c onsciousness due to the choke hold, but nevertheless “reached down to pack [sic] up [a] weapon w ith his left hand . . . and swag [sic] in the air” but missed th e unit officer and “his partner.” Id . at 9. One of the two officers “then pepper spray[ed]” Ha yes, and Hayes responded by running into his cell and “put[ting] water on [his] face.” Id . Hayes alleges thr ee to four unknown officers then ran into his cell and beat him until he was unconscious. Hayes was allegedly then “[t]ransported to the neares t hospital with severe injuries,” including “brain trama [sic],” and “was give n a cat scan at the hospital.” Id

. “[A]fter leaving the hosp ital,” Hayes allegedly return ed to “a hold over cell” at USP Victorville and then, on September 30 , 2021, “was transpor ted to” the United States Penitentiary in Atwate r, California (USP Atwater). Id . Hayes allegedly remained in a special housi ng unit cell at USP Atwater fo r over twelve months and, during at least some of that time, was allege dly deprived of an incident report relating to the incident that occurre d at USP Victorville on Septem ber 30, 2021. Officials at USP Victorville also allegedly withheld and possibly “thr[e]w away” Hayes’s “personal property and trial transcript.” Id . at 8. The complaint also alleged, albeit somewhat cryptically, that Hayes was charged with using a weapon to assault the two officers at USP Victorville and that, in doing so, prison officials relie d on “false video footage.” Id . at 9. In addition, the complaint alleged, without providing any de tail, that Hayes was deprived “of the use of the law library and [an] item off commissary.” Id . at 8. Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 34 In a section titled “REQUEST FOR RELIEF,” the complaint requested compensatory and punitive damages. Id . at 11. The complaint also “request[ed] a[n] injunction challenging [Hayes’s] transfer” to USP Florence because his “due process ha[d] been violated.” Id

. The district court referred the case to the magistrate judge for initial proceedings, including a review of the complaint pursuant to 28 U.S.C. § 1915. On August 30, 2023, the magistrate judge i ssued an order recommending that Hayes’s complaint be dismissed as legally frivolous. In the or der, the magistrate judge concluded that “the Bivens claims lack[ed] merit” becau se such claims could not be brought against the defendants in their official capacities. Id . at 22. “Even construing” the complaint “lib erally as asserting the cons titutional claims against the John Doe Defendants in their i ndividual capacities,” the magistrate j udge concluded that “the claims still should be dismissed because the Di strict of Colorado [wa]s not the proper venue and a ny individual capacity Bivens claims [we]re not cognizable.” Id . The magistrate judge explained that the claims “[we]re premised on events occurring in California” and, as such, “must be raised in the appropriate court in California.” Id . The magistrate judge also noted that the claims asserted in the complaint “would require an expansion of Bivens beyond the three categories of claims recognized [by the Supreme Court] in Bivens [(addressing a Fourth Amendment unreasonable search and seizure claim)],” Davis v. Passman , 442 U.S. 228 (1979) (addressing a Fifth Amendment equal protection clai m concerning gender discrimination), and Carlson v. Green , 446 U.S. 14 (1980) (addressing an Eighth Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 45 Amendment medical treatment claim). ROA at 24. Further, th e magistrate judge noted that “the [Bureau of Prisons’ (B OP’s)] Administrative Remedy Program [wa]s an adequate alternative reme dy for the claims . . . Hayes [wa]s attempting to plead.” Id . at 24–25. As for Hayes’s request for an injunction prohibiting his transfer to USP Florence, the magistrate judge concluded that Hayes’s comp laint did not “allege facts that demonstrate[d] that he ha[d] been deprived of life or property based on his transfer to and placement at” USP Florence. Id . at 25. The magistrate judge also concluded that “there [wa]s no indication that . . . Hayes’ transfer to and placement at [USP Florence] ha[d] subjected him to atypical and significan t hardship in relation to the ordinary incidents of prison life.” Id . at 26. The magistrate judge therefore concluded that “Hayes’ transfer to a nd placement at [USP Florence] d[id] not implicate a protected liberty interest.” Id

. Hayes filed a written response to the ma gistrate judge’s recommendation. The response essentially repeated the allegations in Hayes’s complaint, while adding a few details that were not included in the complaint. Hayes’s response did not, however, address the magistrate judge’s reasons for recommending dismissal of the complaint. On September 25, 2023, the district court issued an order accepting and adopting the magistrate j udge’s recommendation. The order dismissed Hayes’s complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The order also denied Hayes “leave to proceed in forma pauperis on appeal . . . without prejudice to the filing of a motion seeki ng leave to proceed in forma pauperis on Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 56 appeal in the United States Court of Appeals for the Tenth Circuit.” Id . at 40. Lastly, the order “cert ifie[d] pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from th[e] dismissal would not be taken in good faith.” Id

. Final judgment was entered in the cas e on September 25, 2023. Hayes filed a timely notice of appeal and has since filed a motion with this court for leave to proceed on appeal in forma pauperis.
II We review the district court’s dismissa l of claims as fri volous under 28 U.S.C. § 1915(e)(2)(B)(i) for a buse of discretion. See Fogle v. Pierson , 435 F.3d 1252, 1259 (10th Cir. 2006). If the frivolousness determination turns on an issue of law, our review is de novo. Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). Section 1915 of Title 28, as its title indicates, addr esses various aspects of “[p]roceedings in forma pauperis.” 28 U.S.C. § 1915. Of relevance here, § 1915(e)(2)(B)(i) provides that “[n]otwith standing any filing fe e, or any portion thereof, that may have been paid, the cour t shall dismiss the case at any time if the court determines that . . . the action or appeal . . . is frivolous or malicious.” Id

. § 1915(e)(2)(B)(i). After reviewing the record on appeal, we agree with the ma gistrate judge and the district court that the cl aims alleged in Hayes’s comp laint are legally frivolous. To begin with, the complaint plainly alleged that the clai ms asserted therein were brought against the four defe ndants only in their official capacities. But, as the magistrate judge correctly noted, Bivens claims “can be brought only against federal Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 67 officials in their individual capacities,” and “cannot be asse rted directly against the United States, federal officials in their offi cial capacities, or federal agencies.” Smith v. United States , 561 F.3d 1090, 1099 ( 10th Cir. 2009). Further, even if we were to liberally construe the co mplaint as asserting claims against the defendants in thei r individual capacities, the claims themselves are not cognizable under Bivens

. 1 In recent years, the Suprem e Court has severely restricted the availability of Bivens claims. See Silva v. United States , 45 F.4th 1134, 1138 (10th Cir. 2022) (ou tlining the history of Bivens , including its “cre ation, expansion, and restriction”). In particular, in Egbert v. Rule , 596 U.S. 482, 491 (2022), the Supreme Court “appeared to alter the two-step Bivens framework by stating that ‘those steps often resolve to a single questi on: whether there is any reason to think that Congress might be better equipped to create a damages remedy.’” Silva , 45 F.4th at 1139 (quoting Egbert , 596 U.S. at 492). The Supreme Court also emphasized in Egbert “that a court may not fashion a Bivens remedy if Congress has already provided, or has aut horized the Executive to provide , ‘an alternative remedial
structure.’” Egbert , 596 U.S. at 493 (quoting Ziglar v. Abbasi , 582 U.S. 120, 137 (2017)). In Silva , this court held that the “key takeaway” from Egbert is “that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better

1 This includes Hayes’s challenge to his transfer from BOP facilities in California to USP Florence. Although th e magistrate judge treated this claim separately from Hayes’s ot her claims, we have long treated federal prisoners’ challenges to BOP transfer decisions as potential Bivens claims. E.g. , Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012). Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 78 positioned to create remedies in the [c ontext considered by the court], and the Government already has provide d alternative remedies that protect plaintiffs.’” 45 F.4th at 1141 (quoting Egbert , 596 U.S. at 494). Notably, in Silva this court considered and rejected a Bivens claims asserted by another prisoner at USP Florence. In doing so, this court “focus[ed] [its] analysis on the alternative remedi al schemes available to” the plaintiff, i.e., the “BOP’s Administrative Remedy Program.” Id . This court ultimatel y concluded “that the BOP Administrative Remedy Program is an adequate ‘means through which allegedly unconstitutional actions . . . can be brought to the attention of BOP and prevented from recurring.’” Id . (quoting Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 74 (2001)). This court therefor e held that the plaintiff’s “ Bivens claim [wa]s foreclosed by the availability of the BOP Administrative Remedy Program to address his complaint.” Id . at 1142. We conclude that Hayes’s Bivens claims are foreclosed for the very same reason.
III The judgment of the dist rict court is AFFIRMED. Hayes’s motion to proceed on appeal in forma pauperis is DENIED. Ha yes is obligated to pay in full the filing fee for this appeal.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 23-1330 Document: 010110989112 Date Filed: 01/24/2024 Page: 8