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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GABRIEL MYRTHIL,

Plaintiff,

v. CASE NO. 5:11-cv-128-RS-GRJ

TWO UNKNOWN NAMED FEDERAL

ACTORS OF THE FEDERAL BUREAU 

OF PRISONS AT FCI MARIANNA,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, a federal prisoner incarcerated at FCI Marianna, initiated this case by

filing a complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). Doc. 1. He seeks leave to proceed as a pauper. 

Doc. 2. Upon careful consideration of the Complaint, it is recommended that this case

be dismissed for failure to state a claim upon which relief may be granted pursuant to

28 U.S.C § 1915(e)(2)(B)(ii).

BACKGROUND

Plaintiff contends that on March 26, 2011, while he was incarcerated at FCI

Marianna, two unknown federal actors denied entry to individuals who wanted to visit

Plaintiff. Plaintiff avers that FCI Marianna was placed on lock down status on March

23, 2011. A memorandum attached to Plaintiff’s complaint (Doc. 1, Exh. 1) indicates

that Warden Paige Augustine informed the inmate population on March 24, 2011 that

due to a serious assault on an inmate, the facility was on lock down and would “not

resume normal operations until reasonably certain it is safe to do so.” Plaintiff states

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that on March 26, 2011, FCI Marianna was still on lock down status but some inmates’

visitors were permitted entry. Plaintiff alleges that one federal officer allowed other

visitors in the facility but told his visitors to wait for approval from a higher ranking

officer. Plaintiff alleges that the second federal officer questioned Plaintiff’s visitors

about who they came to see and how they had traveled and then denied them entry. 

Plaintiff provides no details about his visitors. Plaintiff alleges that the decision to deny

him visitation on March 26, 2011 but to allow other visitors was a violation of the Equal

Protection Clause and his due process rights. Plaintiff asserts that rather than a

member of a protected class, he is a “class of one.” Plaintiff admits that he has not

exhausted administrative remedies but alleges that under McCarthy v. Madigan, 503

U.S. 140 (1992), because he is pursuing a Bivens claim and only seeks money

damages, he is not required to exhaust the grievance procedure before seeking judicial

review. For relief, Plaintiff seeks $130,000 in damages. Doc. 1. 

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915(e)(2), “notwithstanding 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 . . . fails to state a claim upon which relief may

be granted.” 

To state a claim for relief that will survive a motion to dismiss or screening by the

Court, a plaintiff must make factual allegations that are “enough to raise a right to relief

above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

The complaint “must contain something more . . . than . . . a statement of facts that

merely creates a suspicion [of] a legally cognizable right of action.” Id.; Ashcroft v.

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Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951-53 (2009) (Twombly “expounded the

pleading standard for all civil actions,” and conclusory allegations that “amount to

nothing more than a formulaic recitation of the elements of a constitutional . . . claim”

are “not entitled to be assumed true,” and, to escape dismissal, complaint must allege

facts sufficient to move claims “across the line from conceivable to plausible.”).

A pro se litigant's allegations are entitled to the benefit of liberal construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have “license .

. . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir.1998) (overruled on other grounds by Iqbal).

In Bivens, the Supreme Court held that injured plaintiffs can bring a cause of

action for damages against individual federal officers based on violations of

constitutional rights. Bivens involved alleged violations of the Fourth Amendment, but

the Supreme Court has also allowed Bivens actions for violations of other constitutional

rights. See Davis v. Passman, 442 U.S. 228 (1979) (equal protection component of the

Fifth Amendment’s Due Process Clause); Carlson v. Green, 446 U.S. 14 (1980) (Eighth

Amendment’s cruel and unusual punishments clause).

EXHAUSTION

Plaintiff admits that he “has not exhausted administrative remedies in this action

before the courts.” Doc. 1. The Prisoner Litigation Reform Act of 1995, 42, U.S.C. §

1997e(a), requires a prisoner to exhaust all available administrative remedies before

filing an action challenging prison conditions. “This requirement is a ‘pre-condition to

suit’ that must be enforced even if the available administrative remedies are ‘futile or

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inadequate.’” Logue, v. Pearson, 2011 U.S. Dist. LEXIS 66950, *2-3 (S.D. Ga. 2011)

(citing Harris v. Garner, 190 F.3d 1279, 1285-86 (11 Cir. 2005)). Exhaustion is th

mandatory under the PLRA, and unexhausted claims are not permitted. See Jones v.

Bock, 549 U.S. 199, 211 (2002). Proper exhaustion requires completion of the

grievance process as established by BOP regulations. See Lambert v. United States,

198 F. App’x 835, 840 (11 Cir. 2006). th

Despite Plaintiff’s claims to the contrary, the exhaustion requirement does apply

to Bivens claims for monetary damages. Alexander v. Hawk, 159 F.3d 1321, 1324 (11th

Cir. 1998) (noting the limited nature of the pre-PLRA statute as described in McCarthy

v. Madigan and distinguishing those limitations due to subsequent legislative

amendments to § 1997e). As noted, Plaintiff concedes in the Complaint that he has not

completed the administrative remedy process that is available at FCI Marianna.

Although the § 1997e exhaustion requirement is an affirmative defense, when “an

affirmative defense appears on the face of a prisoner’s complaint, thereby revealing

that the prisoner cannot state a claim, the PLRA continues to require a district court to

dismiss the complaint.” Okpala v. Drew, 2007 WL 2407040 (11th Cir. Aug. 24, 2007)

(unpublished) (citing Jones v. Bock, 549 U.S 199, 215 (2007)). Accordingly, this case

must be dismissed pursuant to 28 U.S.C § 1915(e)(2)(B)(ii) for failure to state a claim

upon which relief may be granted. 

DUE PROCESS CLAIM

Notwithstanding Plaintiff’s failure to exhaust his claim, he fails to state a claim for

a constitutional violation. Plaintiff’s due process claim cannot proceed unless he

establishes that he had a liberty interest in visitation. Prisoner constitutional rights

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regarding conditions of confinement are implicated only where the alleged government

actions impose an atypical and significant hardship on the inmate compared to the

normal incidents of prison life. See Sandlin v. Conner, 515 U.S. 472, 483-84 (1995). 

Plaintiff’s alleged single incident of visitation rights, on a day he admits the prison was

in lock down status, falls within the ordinary incidents of confinement and does not rise

to the level of an atypical or significant hardship. See Id.; Caraballo-Sandoval v.

Honsted, 35 F.3d 521, 525 (11 Cir. 1994); Henry v. Department of Corrections, 131 th

Fed. Appx. 847, 849 (3d Cir. 2005) (“Courts have held that a loss of visitation privileges

is one of the ‘ordinary incidents’ of prison confinement.”); Ware v. Morrison, 276 F.3d

385, 287 (8 Cir. 2002) (finding an inmate’s loss of visitation privileges with his wife, for th

18 months, was within the ordinary incidents of confinement). Thus, Plaintiff has failed

to state a due process violation.

EQUAL PROTECTION CLAIM

Plaintiff asserts a “class of one” equal protection claim, and he is required to

allege that there was no rational basis for him being treating differently than other

inmates who were permitted visitation on March 26, 2011. See Griffin Industries, Inc. v.

Irvin, 496 F.3d 1189, 1202 (11 Cir. 2007). Plaintiff contends that there is no rational th

basis for the federal actors’ decision to deny his visitors entry and as evidence of this

points to an incident on July 3, 2010, when FCI Marianna was on lock down status and

Plaintiff was allowed visitation. This is insufficient to state a claim for an equal

protection violation. Plaintiff avers that the facility was on lock down status when his

visitors were allegedly denied entry. Presumably, the reasons for each lock down will

vary and the attendant security concerns will also vary. This is sufficient to provide a

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rational basis for denial of visitation. The facility was in lock down status in order to

maintain the safety of staff and inmates, and limiting the number of visitors is a

reasonable action in light of the safety concerns that existed at the time. Thus, Plaintiff

has failed to state an equal protection violation.

CONCLUSION

Plaintiff admits that he has failed to exhaust administrative remedies. 

Furthermore, Plaintiff’s complaint of a single denial of visitation while the facility was in

lock down status following the assault and serious injury of an inmate does not rise to

the level of a constitutional violation – Due Process, Equal Protection, or otherwise –

that is cognizable in a Bivens claim.

Accordingly, it is respectfully RECOMMENDED that:

1. The Complaint, Doc. 1, be DISMISSED for failure to state a claim upon which

relief may be granted pursuant to 28 U.S.C § 1915(e)(2)(B)(ii).

2. The Motion for Leave to Proceed In Forma Pauperis be GRANTED for the

limited purposes of screening this claim.

IN CHAMBERS this 10 day of October 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

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