United States District Court, N.D. Florida, Tallahassee Division
ORDER AND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
proceeding pro se, has filed a second amended complaint, ECF
No. 35, in this civil rights action brought pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bur. of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). This version of Plaintiff's complaint has been
reviewed as required by 28 U.S.C. § 1915A.
Plaintiff has filed a “motion to confirm
Defendants.” ECF No. 39. Plaintiff's motion is
denied because Plaintiff's request for relief is not
clear. It is unclear whether Plaintiff is requesting that
this Court confirm the name and title of the warden listed in
his second amended complaint, or to confirm that this case
proceeds against Warden Coil and several other officers from
the Federal Detention Facility in Tallahassee. Because
Plaintiff's motion cannot be understood, it is denied.
also filed a “motion” seeking an explanation
concerning the Report and Recommendation. ECF No. 40.
Plaintiff says that he is confused about the notice which is
on the bottom of the Report and Recommendation. Id.
Plaintiff need not be concerned about the notice portion of
the prior Report and Recommendation, ECF No. 34,
because it has been vacated. This motion is also denied.
Plaintiff's second amended complaint, ECF No. 35,
Plaintiff seeks to bring claims against: (1) the warden of
FDC - Tallahassee, R.E. Coil; (2) an unknown officer of the
“SIS - FDC - Tallahassee;” (3) J. Lynch,
identified as “SIS Property Officer;” and (4)
Officer/Director Mr. Profit. ECF No. 35. Plaintiff continues
to indicate that he sues all Defendants in both their
individual and official capacities. ECF No. 35 at 2-3, 14.
However, as noted above, this action is brought pursuant to
Bivens. A federal prisoner may sue a federal
officer in a Bivens cause of action. Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 69-70, 122 S.Ct.
515, 520-21, 151 L.Ed.2d 456 (2001). However, a
Bivens claim is brought against an officer in his or
her individual capacity only. Thus, Plaintiff may not sue
federal officers in their official capacities for monetary
damages. F.D.I.C. v. Meyer, 510 U.S. 471, 486, 114
S.Ct. 996, 127 L.Ed.2d 308 (1994) (cited in Guest v.
United States, No. 5:13-CV-283-CAR-CHW, 2014 WL 2881958,
at *2 (M.D. Ga. June 25, 2014), aff'd, 615
Fed.Appx. 656 (11th Cir. 2015)).
Plaintiff's allegations do not state a claim against any
named Defendant. In general, Plaintiff alleges that he had
property intentionally stolen while he was housed at F.D.C.
in violation of the Fifth Amendment. ECF No. 35 at 5-6.
Plaintiff indicates that another inmate came to his cell and
put a file on his bed saying, “think this is
yours.” Id. at 5. Plaintiff alleges that he
reported it to his lawyer. Id. Plaintiff also
complains that he was taken to the “SHU” on false
charges. Id. He suggests that he was placed there so
officers could confiscate incriminating documents.
Id. He further claims that the documents were
“intentionally” taken with no plans to return
them to him. Id. at 6. The documents still have not
been returned despite his requests for help. Id.
has not provided facts which reveal that any named Defendant
violated his rights. Plaintiff has not identified any
specific person who allegedly, intentionally, deprived him of
his property. Without such an allegation, Plaintiff's
claim cannot succeed.
the number of opportunities Plaintiff has already been
provided in which to submit a viable complaint, it does not
appear that further opportunities would be beneficial.
Accordingly, it is recommended that Plaintiff second amended
complaint, ECF No. 25, be dismissed for failure to state a
Plaintiff's motion to confirm, ECF No. 39, is
Plaintiff's motion to explain, ECF No. 40, is
respectfully RECOMMENDED that
Plaintiff's second amended complaint, ECF No. 35, be
DISMISSED for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2), and that the Order adopting this Report and
Recommendation direct the Clerk of Court to note on ...