2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 390 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1897

___________
JOSE NAVARRETE,

Appellant

v. UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS, Warden; FEDERAL CORRECTIONS INSTITUTION; LOUISIANA STATE UNIVERSITY; BARNES AN D NOBLE BOOK STORE, Owner, Louisiana State Univer s ity;

EDUCATION SUPERVISOR

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1

- 09

- cv - 03683 ) District Judge: Honorable Jerome B. Simandle

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 15, 2013 Before : AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed : September 3, 2013 )

_________ OPINION

_________PER CURIAM

Jose Navar re te , a federal inmate confined at the Federal Correctional Institution at Fort Dix, N ew Jersey (FCI

- Fort Dix ) , appeals from an order of the District Court granting
defendant ’s motion for summary judgment. Navar r ete al so appeals the District Court’s
denial of his motion for reconsideration. For the reasons that follow , we will summarily

a ffirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Navar re te commenced this action against the United States of America , the
Federal Bureau of Prisons (“FBOP”), the Warden of FCI

- Fort Dix, the Education Supervisor at FCI

- Fort Dix, the President of Louisiana State University (“LSU”), and the
owner of the Barnes & Noble Book Store at LSU. 1 He alleged that, while incarcerated,
he enrolled in a correspondence course at LSU, but that the mailroom at FCI

- Fort Dix improperly refused delivery of his course textbooks

. As a result, he was u nable to complete the course
. In his complaint, Navarrete asserted that defendants violated his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments , and unspecified
state laws

. The District Court dismissed sua sponte for failure to state a claim, all of
Navarrete’s claims except his First and Fifth Amendment claims against the Warden of

1 Although Navar r ete sought relief under 42 U.S.C. § 1983 , the District Court construed his suit as an action under Bivens v. Six Unknown Named Agents of the FBI , 403 U.S. 388 (1971) , not § 1983, because it invol ved federal (and alleged federal) actors rather than state actors. See Bivens , 403 U.S. at 389 (recognizing a private cause of action to recover damages against federal actors for constitutional violations).FCI

- Fort Dix. Following discovery, the D istrict Court granted the Warden’s motion for

summary judgment on Navarrete’s remaining claims

. Navarrete filed a motion for reconsideration, which the District Court denied. This appeal followed. We have jurisdictio n pursuant to 28 U.S.C. § 1291

. Our review of the District Court’s dismissal for failure to state a claim, as well as its grant of summary judgment, is pl enary. Barefoot Architect, Inc. v. Bunge , 632 F.3d 822, 826 (3d Cir. 2011)

. We determine that t he District Court properly dismissed any Bivens claims against the United States, F BOP, and FCI

– Fort Dix

. 2 See Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 72 (2001 ) (holding that Bivens claims may only be brought against individual federal officers, not the United States or its agencies). 3 Nav ar r ete’s
constitutional claims against LSU and the Barnes and Noble bookstore , both private entities, were also properly dismissed. Corr. Servs. Corp. , 534 U.S. at 71

. Moreover, as the District Court noted, Barnes and Noble issued Navarrete a refund afte r the store received the returned books

. We also agree , for the reasons given by the District Court,

2 We construe Navarrete’s notice of appeal a s also challenging the District Court’s earlier order dismissing some of his claims.

3 To the extent that the complaint could be construed as attempting to assert a claim under the Federal Tort Claims Act (“FTCA”), we agree with the District Court that it did not have subject matter jurisdiction under the FTCA. A claim may not be brought pursuant to the FTCA unless the plaintiff has first exhausted his administrative remedies. See White

- Squire v. U.S. Postal Serv. , 592 F.3d 453, 457 (3d Cir. 2010) (quoti ng 28 U.S.C. § 2675(a)). This requirement “is jurisdictional and cannot be waived.” Roma v. United States , 344 F.3d 352, 362 (3d Cir. 2003) (citation omitted). Navarrete does not claim to have availed himself of, let alone exhausted, available administr ative remedies.that Navarrete failed to allege any facts demonstrating the denial of any rights under the

Fourth, Eighth, or Fourteenth Amendment s. We further conclude that the District Court properly granted the Warden of FCI

Dix’s motion for summary judgment on Navarrete’s First and F ifth Amendment claims. Even assuming that the return of Navarrete’s course textbooks violated his First and Fifth Amendment rights, he d id not set forth any evidence upon which a jury could conclude
that the Warden had any personal involvement in that decision , and a Bivens claim cannot be premised upon a theory of respondeat superior. See Ashcroft v. Iqbal , 556 U.S. 662, 675

- 77 (2009 ) ; A rgueta v. U.S. Immigration & Customs Enforcement , 643 F.3d 60,
71

- 72 (3d Cir. 2011)

. Finally, the District Court did not abuse its discretion in denying Navarrete’s motion for reconsideration, as it did not include any of the grounds required for

recon sideration. See Lazaridis v. Wehmer , 591 F.3d 666, 669 (3d Cir. 2010) (per curiam) (Rule 59 motion “ must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear er ror of law or prevent manifest injustice ”)

.