UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

HERBERT GRAYSON HAYES, 

 Plaintiff - Appellant, 

v. 

JOHN DOE, JOHN DOE, 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 currently confined at the United States 

Penitentiary in Florence, Colorado (USP Florence), filed this pro se civil rights action 

against four unnamed employees of a federal prison in California where Hayes was 

previously confined. The district court granted Hayes leave to proceed in forma 

pauperis, but later sua sponte dismissed Hayes’s complaint 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 appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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

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proceed on appeal in forma pauperis. Exercising jurisdiction pursuant to 28 U.S.C. 

§ 1291, we affirm the judgment of the district court and deny Hayes’s request to 

proceed on appeal in forma pauperis. 

I 

 On June 21, 2023, Hayes initiated these federal proceedings by filing a pro se 

motion for appointment of counsel. 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 motion 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 their official capacities; these 

defendants, according to the complaint, were employees at the United States 

Penitentiary in Victorville, California (USP Victorville). The complaint alleged that 

on September 30, 2021, while Hayes was “preparing [him]self for [his] daily prayer 

in [his] cell,” an unknown unit officer approached him and “patted [him] down 

outside of [his] cell.” ROA at 7. After the search, Hayes entered his cell “to grab 

[his religious] books and prayer rug.” Id. The unit officer allegedly “asked to see 

[Hayes’s] religious books.” Id. Hayes “told [the unit officer] respectfully that he 

wasn’t in purification to touch [the] religious items.” Id. Hayes then walked out of 

his cell, but allegedly dropped his “religious book” on the floor as he did so. Id. As 

Hayes reached down to pick up the book, the unit officer allegedly “reached around 

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[Hayes’s] neck while [he] was bent over and placed [him] in a rear naked [sic] 

choke.” Id. Hayes allegedly began to lose consciousness due to the choke hold, but 

nevertheless “reached down to pack [sic] up [a] weapon with his left hand . . . and 

swag [sic] in the air” but missed the unit officer and “his partner.” Id. at 9. One of 

the two officers “then pepper spray[ed]” Hayes, and Hayes responded by running into 

his cell and “put[ting] water on [his] face.” Id. Hayes alleges three to four unknown 

officers then ran into his cell and beat him until he was unconscious. Hayes was 

allegedly then “[t]ransported to the nearest hospital with severe injuries,” including 

“brain trama [sic],” and “was given a cat scan at the hospital.” Id. 

 “[A]fter leaving the hospital,” Hayes allegedly returned to “a hold over cell” at 

USP Victorville and then, on September 30, 2021, “was transported to” the United 

States Penitentiary in Atwater, California (USP Atwater). Id. Hayes allegedly 

remained in a special housing unit cell at USP Atwater for over twelve months and, 

during at least some of that time, was allegedly deprived of an incident report relating 

to the incident that occurred at USP Victorville on September 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 relied on “false video footage.” Id. at 9. In addition, the 

complaint alleged, without providing any detail, that Hayes was deprived “of the use 

of the law library and [an] item off commissary.” Id. at 8. 

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 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 issued an order recommending that Hayes’s 

complaint be dismissed as legally frivolous. In the order, the magistrate judge 

concluded that “the Bivens claims lack[ed] merit” because such claims could not be 

brought against the defendants in their official capacities. Id. at 22. “Even 

construing” the complaint “liberally as asserting the constitutional claims against the 

John Doe Defendants in their individual capacities,” the magistrate judge concluded 

that “the claims still should be dismissed because the District of Colorado [wa]s not 

the proper venue and any 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 claim concerning gender 

discrimination), and Carlson v. Green, 446 U.S. 14 (1980) (addressing an Eighth 

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Amendment medical treatment claim). ROA at 24. Further, the magistrate judge 

noted that “the [Bureau of Prisons’ (BOP’s)] Administrative Remedy Program [wa]s 

an adequate alternative remedy 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 complaint 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 significant hardship in relation to 

the ordinary incidents of prison life.” Id. at 26. The magistrate judge therefore 

concluded that “Hayes’ transfer to and placement at [USP Florence] d[id] not 

implicate a protected liberty interest.” Id. 

 Hayes filed a written response to the magistrate 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 judge’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 seeking leave to proceed in forma pauperis on 

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appeal in the United States Court of Appeals for the Tenth Circuit.” Id. at 40. 

Lastly, the order “certifie[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 case 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 dismissal of claims as frivolous under 28 U.S.C. 

§ 1915(e)(2)(B)(i) for abuse 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, addresses various aspects of 

“[p]roceedings in forma pauperis.” 28 U.S.C. § 1915. Of relevance here, 

§ 1915(e)(2)(B)(i) provides that “[n]otwithstanding any filing fee, or any portion 

thereof, that may have been paid, the court 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 magistrate judge and 

the district court that the claims alleged in Hayes’s complaint are legally frivolous. 

To begin with, the complaint plainly alleged that the claims asserted therein were 

brought against the four defendants only in their official capacities. But, as the 

magistrate judge correctly noted, Bivens claims “can be brought only against federal 

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officials in their individual capacities,” and “cannot be asserted directly against the 

United States, federal officials in their official 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 complaint as asserting claims 

against the defendants in their individual capacities, the claims themselves are not 

cognizable under Bivens.

1

 In recent years, the Supreme Court has severely restricted 

the availability of Bivens claims. See Silva v. United States, 45 F.4th 1134, 1138 

(10th Cir. 2022) (outlining the history of Bivens, including its “creation, 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 question: 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 authorized 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 the magistrate judge treated this claim 

separately from Hayes’s other 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). 

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positioned to create remedies in the [context considered by the court], and the 

Government already has provided 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 remedial schemes available to” the plaintiff, i.e., the “BOP’s 

Administrative Remedy Program.” Id. This court ultimately 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 therefore 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 district court is AFFIRMED. Hayes’s motion to proceed 

on appeal in forma pauperis is DENIED. Hayes is obligated to pay in full the filing 

fee for this appeal. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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