                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              March 15, 2007
                             No. 06-10912                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 05-02846-CV-CAM-1

LEROY ELLIS,


                                                           Plaintiff-Appellant,

                                  versus

BUREAU OF PRISONS,
U.S.P. ATLANTA,
Records Department,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (March 15, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      Leroy Ellis, a federal prisoner proceeding pro se, appeals the district court’s

dismissal, under 28 U.S.C. § 1915A, of his civil complaint seeking punitive and

compensatory damages for illegal confinement against the Federal Bureau of

Prisons (“BOP”), United States Penitentiary in Atlanta, Records Department. We

AFFIRM.

                                I. BACKGROUND

      Ellis filed a pro se civil action against the BOP, United States Penitentiary in

Atlanta, Records Department, and stated that he was invoking the district court’s

jurisdiction under 28 U.S.C. § 1331. Ellis alleged that the BOP held him for three

years beyond his correct release date. He contends that, while he was in state

custody awaiting sentencing on state charges in September 1992, he was taken into

federal custody pursuant to a federal indictment. The district judge sentenced Ellis

to 137 months of imprisonment on November 18, 1992, and, on November 24,

1992, he received a seven-year sentence for the state charges. Ellis argues that his

state sentence was to run concurrently with his federal sentence. He also alleges

that he was committed to federal custody until February 17, 1994, when the BOP

transferred him to state custody after realizing he had been erroneously designated

as a federal prisoner. Ellis argues that, when he completed his state sentence on

July 2, 1996, the BOP erroneously determined that his federal sentence began on



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that date and did not grant him credit for the prior time that he had spent in federal

custody. Consequently, he contends that his federal sentence was increased by

fifteen months. R1-1 at 6. Ellis alleges that he previously filed two actions raising

his claims in federal court but that he was denied relief in both. Ellis sought

compensatory damages of $1,000,000 and punitive damages of $1,000,000. In

support of his claim, Ellis attached the docket sheet from his federal conviction,

which indicates that the execution of his sentence began on January 10, 1993, and

the transfer order of February 17, 1994. R1-1, attached exhibits.

      The district judge, acting sua sponte, dismissed Ellis’s action as frivolous

under 28 U.S.C. § 1915A. The judge noted that Ellis’s action initially was

construed as a habeas petition under 28 U.S.C. § 2241 and ordered that the action

be converted into a civil rights action under 28 U.S.C. § 1331 and Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91

S.Ct. 1999 (1971), because Ellis invoked the district court’s jurisdiction under

§ 1331 and sought only damages. The district judge then granted Ellis in forma

pauperis status and screened his action pursuant to § 1915A. The judge took notice

that the Middle District of Pennsylvania, in denying a § 2241 petition brought by

Ellis raising the same claim, concluded that any time Ellis had spent in federal

custody erroneously was credited to his state sentence and that Ellis was not



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entitled to have his state and federal sentences run concurrently. R1-3 at 4; see

Ellis v. True, No. 4:CV-97-1511 (M.D. Pa. Dec. 30, 1997), aff’d 164 F.3d 621 (3d

Cir. 1998). The district judge also found that Ellis raised the same claim in at least

two successive § 2241 petitions that were both denied. R1-3 at 4; see Ellis v.

United States, No. 5:02-cv-165 (M.D. Fla. Aug. 12, 2002); Ellis v. Ashcroft, No.

1:04-cv-00015 (N.D. Fla. Sept. 16, 2005). The judge concluded that Ellis’s claim

was “'indisputably meritless'” because he failed to show that his sentence was

invalid or called into question and that, in fact, his challenges to his sentence had

been “soundly rejected.” R1-3 at 5. Accordingly, the district judge dismissed

Ellis’s action as frivolous.

      On appeal, Ellis argues that the district judge erred by characterizing his

claim as a Bivens action. He contends that the issue is the BOP’s error in its

designation process, not the unconstitutionality of his confinement. Ellis also

argues that the district judge did not properly examine the record before

concluding that his claim was without merit because he provided sufficient support

for his claim. The government did not respond.

                                  II. DISCUSSION

      Under § 1915A, a district judge must review a prisoner’s civil complaint

against a governmental entity or an officer or employee of a governmental entity to



                                           4
identify cognizable claims or to dismiss the complaint, or any portion of the

complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon

which relief may be granted.” 28 U.S.C. § 1915A(a), (b)(1). Similarly, a district

judge must dismiss an appeal taken in forma pauperis if, at any time, the judge

determines that the action is “frivolous,” “malicious,” or “fails to state a claim on

which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). Because we

review a district judge’s decision to dismiss a complaint as frivolous under §

1915(e)(2)(B)(i) for an abuse of discretion, Napier v. Preslicka, 314 F.3d 528, 531

(11th Cir. 2002), we will review a district judge’s dismissal of a complaint as

frivolous under § 1915A for an abuse of discretion. See Bilal v. Driver, 251 F.3d

1346, 1349 (11th Cir. 2001) (stating that “[a] determination of frivolity is best left

to the district court”); Rice v. Baker, 181 Fed. Appx. 902, 903 (11th Cir. 2006) (per

curiam) (reviewing the district judge’s dismissal of a complaint as frivolous under

§ 1915A for an abuse of discretion). An action is frivolous if it is “without

arguable merit either in law or fact.” Bilal, 251 F.3d at 1349.

      Bivens established the availability of a cause of action for monetary

damages against federal officials in their individual capacities based on a violation

of a federal constitutional right. 403 U.S. at 395-97, 91 S.Ct. at 2004-05. Bivens

involved alleged violations of the Fourth Amendment, but the Supreme Court has



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extended Bivens to actions alleging violations of the Due Process Clause of the

Fifth Amendment. Davis v. Passman, 442 U.S. 228, 242-44, 99 S.Ct. 2264, 2275-

76 (1979). Bivens actions may not be asserted against federal agencies. Fed.

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 486, 114 S.Ct. 996, 1005-06 (1994).

      The Supreme Court has held that

      in order to recover damages for allegedly unconstitutional conviction
      or imprisonment, or for other harm caused by actions whose
      unlawfulness would render a conviction or sentence invalid, a § 1983
      plaintiff must prove that the conviction or sentence has been reversed
      on direct appeal, expunged by executive order, declared invalid by a
      state tribunal authorized to make such determination, or called into
      question by a federal court's issuance of a writ of habeas corpus . . . .

Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). Thus, if

entering judgment in favor of the prisoner “would necessarily imply the invalidity

of [the prisoner’s] conviction or sentence[,]” a district judge must dismiss the

complaint unless the prisoner demonstrates that the conviction or sentence has

already been invalidated. Id. at 487, 114 S.Ct. at 2372. We have held that Heck

applies with equal force in a Bivens action filed by a federal prisoner. Abella v.

Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (per curiam).

      As an initial matter, the district court properly considered Ellis’s claim under

Bivens. In his complaint, Ellis sought monetary damages from individuals in the

Records Department of the Bureau of Prisons’s federal penitentiary in Atlanta for



                                           6
committing an error that resulted in illegal confinement in violation of his due

process rights. The district judge correctly found that Bivens is the appropriate

cause of action for such a claim. See Davis, 442 U.S. at 242-44, 99 S.Ct. at 2275-

76. To the extent that Ellis argues he sought monetary damages against the BOP

itself, a federal agency, such a claim is not cognizable under Bivens, see Meyer,

510 U.S. at 486, 114 S.Ct. at 1005-06, and Ellis did not meet the requirements of

raising a claim for monetary damages against the federal government under the

Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2675(a).1

       The district judge did not abuse his discretion by concluding that Ellis’s

Bivens claim was without arguable merit. Ellis claims that he has remained in

federal custody beyond his release date because his federal sentence should have

run concurrently with a state sentence that he also received and because the BOP

failed to credit his federal sentence with time he spent in a federal prison during

which he should have been in a state prison. A ruling in favor of Ellis, concluding

that individuals in the BOP were liable for illegally confining him, would

necessarily imply that his federal sentence was invalid on the grounds that it should

       1
          To the extent that Ellis attempts to bring a claim for monetary damages against the BOP
for the actions of its employees, such a claim should be brought under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq. For a district court to have jurisdiction over an FTCA
action, a plaintiff must first show that he presented his claim to the agency and that the agency
denied it in writing. 28 U.S.C. § 2675(a); Burchfield v. United States, 168 F.3d 1252, 1254-55 (11th
Cir. 1999). Because Ellis presented no evidence that he met this requirement, the district court did
not have jurisdiction over any claim for monetary damages against the BOP as an agency.

                                                 7
have run concurrently with his state sentence or because he did not receive proper

credit for time previously served. Therefore, to succeed on his Bivens claim, Ellis

must first prove that his sentence has been invalidated or at least “called into

question.” Heck, 512 U.S. at 487, 114 S.Ct. at 2372.

      Ellis has not made such a showing; instead, he admits that his previous

challenges to his sentence have failed. Ellis raised the same arguments regarding

his sentence to various district courts through 28 U.S.C. § 2241 habeas petitions,

and each district court rejected his arguments. Ellis v. True, No. 4:CV-97-1511

(M.D. Pa. Dec. 30, 1997); Ellis v. United States, No. 5:02-cv-165 (M.D. Fla. Aug.

12, 2002); Ellis v. Ashcroft, No. 1:04-cv-00015 (N.D. Fla. Sept. 16, 2005). One

district judge specifically found that Ellis was not entitled to have his sentences run

concurrently or to receive credit on his federal sentence for the time he served in

federal prison because the time was credited to his state sentence. Ellis, No. 4:CV-

97-1511, at 7. In view of these prior rulings and the absence of any evidence that

his sentence has been invalidated or called into question, Ellis cannot meet the

requirements of Heck. Therefore, the district judge did not abuse his discretion by

concluding that Ellis’s claim was frivolous.




                                           8
                                 III. CONCLUSION

      Ellis argues on appeal that the district judge erroneously treated his

complaint as a Bivens action and, consequently, concluded that his claim had no

merit. As we have explained, the judge correctly analyzed Ellis's allegations.

Accordingly, the district judge's dismissal of Ellis's complaint is

AFFIRMED.




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