BLD-003                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-3322
                                      ___________

                              MICHAEL RAY TURNEY,
                                               Appellant

                                            v.

     ATTORNEY GENERAL FOR THE UNITED STATES OF AMERICA, ex rel.
                       SECRETARY OF LABOR
                ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3-11-cv-00113)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

                  Submitted for Possible Summary Action Pursuant
                     to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  October 4, 2012
       Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                                (Filed: October 22, 2012 )
                                        _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      Michael Turney, proceeding pro se and in forma pauperis, appeals the District

Court’s dismissal of his complaint. Because this appeal presents no substantial question,

we will summarily affirm the order of the District Court.
                                             I.

       Turney was an employee of the Department of Energy and suffered two work-

related injuries in 1993 and in 1995. Turney thereafter received benefits from the

Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”). In

March 2003, Turney pled guilty to a felony and is currently incarcerated at Federal

Correctional Institute Loretto (“FCI Loretto”). Following Turney’s incarceration, the

OWCP suspended benefit payments to Turney pursuant to 5 U.S.C. § 8148(b)(1), which

prohibits persons convicted of felonies from collecting compensation benefits while

incarcerated.

       In May 2011, Turney initiated the underlying action in the United States District

Court for the Western District of Pennsylvania. Turney styled his complaint as an action

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1977), and named as a defendant “Attorney General Eric Holder for the Secretary of

Labor for the OWCP.” Turney individually served U.S. Attorney General Holder and

Secretary of Labor Hilda Solis with notice of process. 1


1
  It was unclear which parties were properly defendants in Turney’s complaint. Attorney
General Holder responded to the complaint and primarily addressed claims made against
the Bureau of Prisons, although the response did briefly address claims made against the
Department of Labor. However, in his reply Turney stated that the Department of Labor
“is the actual defendant not the Bureau of Prisons,” and “[t]his complaint is not against
the B.O.P.” Nevertheless, Turney’s reply contained allegations against officials at FCI
Loretto acting “[t]hrough the attorney general.” Consequently, construing Turney’s
complaint liberally and affording him the allowances due a pro se litigant, we will
address, to the extent they are made, any claims raised against Attorney General Holder
through his control and regulation of the Bureau of Prisons and claims raised against
Secretary Solis through her control and regulation of the OWCP. See Estelle v. Gamble,
429 U.S. 97, 106 (1976).
                                             2
       Construed liberally, see United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999)

(citing Haines v. Kishner, 404 U.S. 519, 520 (1972), the complaint alleged that Attorney

General Holder, through his control and regulation of the Bureau of Prisons (“BOP”),

violated Turney’s Eighth Amendment rights by depriving him of medical services and

necessary hygiene products, thereby subjecting him to “unwanton vindictive pain and

suffering” through “deliberate indifference.” Turney contended that policies at FCI

Loretto deprived him of necessary medical and psychiatric services because he was

charged a $2.00 co-pay for appointments and was required to purchase “life necessities”

and hygiene products, none of which he could readily afford. Additionally, Turney

contended that his request for a consultation with a community psychiatrist was denied.

Turney also stated that his treatment at FCI Loretto was retaliation from Attorney

General Holder due to prior litigation against the Department of Justice, including

Federal Employee Compensation Act claims and a whistleblower’s case.

       Turney contended that the OWCP’s failure to reimburse him for his medical

expenses was cruel and unusual punishment in violation of the Eighth Amendment.

Turney complained that FCI Loretto officials required him to pay for medical treatment

for chronic symptoms related to injuries he sustained as a federal employee, injuries his

workers’ compensation benefits should have covered. The complaint asserted that the

OWCP’s failure to verify that the BOP provided sufficient free care for Turney and to

provide benefits so that he could purchase necessary care that was not freely provided

violated his Eighth Amendment rights.



                                             3
       Attorney General Holder filed a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). He argued that the complaint should be dismissed because

Turney failed to exhaust his administrative remedies against the BOP; failed to show

Attorney General Holder was personally responsible for any of the alleged conduct; and,

to the extent that the complaint challenged the OWCP’s suspension of Turney’s benefits,

the District Court lacked jurisdiction to review the suspension. Turney’s reply contained

further allegations against the BOP, namely, that he received inadequate emergency care

resulting in a deformed finger and that Attorney General Holder, via a “special

administrative measure,” restricted Turney’s medical care to “in house treatment only.”

       The Magistrate Judge treated the complaint as “a straightforward mandamus

action against the Secretary of Labor”; noted that the suspension of Turney’s benefits was

done pursuant to constitutional legislation, 5 U.S.C. § 8148(b)(1); and recommended that

the complaint be dismissed. The District Court did so over Turney’s objections, and

Turney now appeals.

                                             II.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291, and we may affirm

on any grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 121 n.1 (3d

Cir. 2001). Our review of the District Court’s grant of the motion to dismiss is de novo.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). In order to survive

dismissal a complaint must contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). The plausibility standard “asks for more than a sheer possibility that a

                                             4
defendant has acted unlawfully.” Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009). A claim is

plausible on its face “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

We may summarily affirm if the appeal presents no substantial questions. See 3d Cir.

L.A.R. 27.4; I.O.P. 10.6.

                                             III.

       A. Bivens Action Against Attorney General Holder

       A Bivens claim cannot rely on the theory of respondeat superior; that is, in a

Bivens action “masters do not answer for the torts of their servants.” Iqbal, 556 U.S. at

675-77 (internal quotation marks omitted). A party may establish liability for deprivation

of a constitutional right only through a showing of personal involvement by each

defendant. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal

involvement may be shown through personal direction, actual participation in the alleged

misconduct, or knowledge of and acquiescence in the alleged misconduct. Id.

       In this case, insofar as Turney named Attorney General Holder as a defendant, he

did not allege that Attorney General Holder was personally involved in the alleged

denials of medical care and hygiene products. Although Turney made broad allegations

that the treatment he described was retaliation from Attorney General Holder due to

Turney’s previous litigation against the Department of Justice, we need not accept these

general assertions as true. See Iqbal, 556 U.S. at 678 (stating that in a pleading bare

assertions, unsupported by facts, are insufficient). We look to the factual allegations

Turney presented in support of his legal conclusions. See id. at 679. On review, we

                                              5
conclude that his allegations against Attorney General Holder, lacking in specificity, are

not plausible. Even construing Turney’s pleadings liberally, as we must, they do not

allow us to infer more than the mere possibility of misconduct, which does not indicate

that he is entitled to relief. See id. Simply, the facts pled are consistent with Attorney

General Holder directing Turney’s treatment and care, but are compatible with, and more

likely explained by, the local officials at FCI Loretto directing Turney’s treatment and

care. 2 See id. at 680. Without evidence of personal involvement or knowledge of

Turney’s treatment, the claim against Attorney General Holder cannot survive.

       B. Bivens Action Against Secretary Solis

       Turney’s allegations against Secretary Solis likewise fail because they rely on

respondeat superior. Id. at 675-77. As with his claim against Attorney General Holder,

Turney must show that Secretary Solis had personal involvement in the alleged

misconduct. Rode, 845 F.2d at 1207. Turney did not allege that Secretary Solis was

personally involved in or had knowledge of the suspension of his workers’ compensation

benefits. Without evidence of personal involvement or knowledge of the denied requests,

Turney’s claims against Secretary Solis fail.




2
 To the extent that Turney’s complaint is actually seeking relief from FCI Loretto
officials or the BOP, the District Court did not err in declining Turney leave to amend his
complaint. Any amendment that named the proper parties would be futile because
Attorney General Holder pled, and Turney conceded, that Turney did not exhaust his
administrative remedies against FCI Loretto officials and the BOP. See Jones v. Bock,
549 U.S. 199, 211 (2007) (noting that under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997(e), exhaustion is mandatory and unexhausted claims cannot be brought in court).
                                                6
                                             IV.

       Although we are not convinced that Turney’s filing was a petition for a writ of

mandamus, to the extent that Turney sought a writ of mandamus ordering Secretary Solis

to reinstate his workers’ compensation benefits, we agree with the District Court that one

was unwarranted. Mandamus is a drastic remedy available in extraordinary

circumstances only. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 373, 378 (3d. Cir.

2005). A plaintiff seeking a writ of mandamus must show that he has (1) no other

adequate means to attain the relief desired and (2) a clear and indisputable right to the

writ he seeks. In re Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). Turney’s benefits were

suspended pursuant to 5 U.S.C. § 8148(b)(1). That statute explicitly prohibits payment of

benefits to an individual incarcerated for a felony. Turney has not shown any right to

their reinstatement.

                                             V.

       Turney’s Bivens claims were without merit and he has not shown a right to a writ

of mandamus. Accordingly, the District Court’s dismissal of his complaint was correct.

See Hughes, 242 F.3d at 121 n.1. As this appeal presents no substantial question, we will

summarily affirm.




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