            Case: 14-14419    Date Filed: 07/15/2016   Page: 1 of 26


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-14419
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 5:11-cv-00057-SDM-PRL

RAMON LOPEZ,

                                                          Plaintiff-Appellant,

                                    versus


UNITED STATES OF AMERICA,
U.S. DEPARTMENT OF JUSTICE,
U.S. ATTORNEY,
Executive Office,
HARRELL WATTS,
Administrative National Inmates Appeals,
WARDEN, et al.,

                                                       Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (July 15, 2016)
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Before WILLIAM PRYOR, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      This action filed by Ramon Lopez, a Florida prisoner proceeding pro se,

broadly concerns a freeze prison officials placed on his prison trust account in

response to two writs of garnishment issued by federal district courts. The writs

issued in order to collect $45,000 in fines imposed against Lopez in connection

with two criminal convictions in 1992 and 1993. In his complaint, Lopez alleged

that various defendants, primarily officials and employees of the Federal Bureau of

Prisons (“BOP”) and the Coleman Federal Correctional Complex (“FCC

Coleman”), violated his constitutional rights and BOP policies through their

actions regarding his trust account, and then failed to adequately respond to his

requests for information about the account freeze. The district court dismissed

Lopez’s complaint and then denied his motion for reconsideration of the dismissal.

Lopez challenges both rulings on appeal. After careful review, we affirm in part

and vacate and remand in part.

                                 I. BACKGROUND

      Lopez appeals from a grant of a motion to dismiss under Rule 12(b)(6), Fed.

R. Civ. P., so we accept as true the allegations in his operative second amended

complaint. See Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211,

1215–16 (11th Cir. 2012).        In addition, because Lopez attached as exhibits


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numerous documents to his complaint, we treat these documents as part of the

complaint for Rule 12(b)(6) purposes, see id., and we also consider the judgments

and writs of garnishment from Lopez’s criminal cases, attached to the defendants’

motion to dismiss, because they are central to Lopez’s claims and their authenticity

is not disputed, see Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).1

A.     Factual Allegations and Relevant Background

       In 1992 and 1993, Lopez was convicted of various drug-trafficking crimes

and ordered to pay a total of $45,000 in fines.                    $20,000 was to be paid in

installments as directed by the United States Probation Office, while $25,000 was

to be paid immediately. Lopez is currently serving a life sentence.

       After his convictions but before the events giving rise to this case, Lopez

received and deposited into his inmate trust account approximately $90,000 from

two sources:        a successful forfeiture challenge and an insurance settlement.

Defendants Scott Middlebrooks (Warden of United States Penitentiary Coleman 1

(“USP Coleman”), part of FCC Coleman) and Susan Church (FCC Coleman’s

Business Administrator), approved the deposit and represented to Lopez that the

money could be withdrawn as needed.



       1
            The judgments and writs are also public records subject to judicial notice. See United
States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (“[A] court may take notice of another
court’s order . . . for the limited purpose of recognizing the ‘judicial act’ that the order represents
. . . .”); Fed. R. Evid. 201(b).
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      Lopez was able to withdraw funds from his trust account without issue until

January 2009, when Middlebrooks delegated to Defendant Steven Mora (Assistant

Warden of USP Coleman) the authority to review and approve all withdrawal

requests over $250. Mora, in turn, tasked the Prison Special Investigation Unit

(“Investigation Unit”), composed of Defendants C. R. Ayers, J. Kajander, and J.

Bengford, with investigating inmate funds for any illicit sources and conducting

background checks of persons receiving funds from inmates. In Lopez’s view, the

actions of the Investigation Unit caused “excessive and unnecessary delays and . . .

misplacements of the plaintiff’s withdrawal of funds requests,” harming Lopez’s

ability to timely comply with his financial obligations and to support his children.

See Second Am. Compl. ¶ 4 (Doc. 18).

      Lopez complained about the delays to Mora, who said he made his own

policy; to Ayers, who said he could expedite Lopez’s requests if he provided

information about illegal prison activities; and finally to Middlebrooks, who

referred the matter back to Mora. Although Mora was unhappy that Lopez had

complained to Middlebrooks, shortly thereafter, Lopez’s pending requests were

processed.

      In September 2009, Lopez submitted withdrawal requests in order to assist

his children and pay legal fees, but his requests were not processed. About two

months later, Lopez learned that Middlebrooks had ordered the encumbrance of


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$45,000 from his trust account to collect the criminal fines ordered over fifteen

years prior. Thereafter, two of the September 2009 withdrawal requests, though

they had been approved by Mora and Bengford, were voided by Defendant Jeff

Campbell (Supervisory Attorney of the FCC Coleman’s Legal Department).

      Frustrated by the encumbrance on his account, Lopez began filing informal

and formal grievances through the internal BOP administrative process.         He

requested the following: (1) removal of the encumbrance on his account; (2) an

investigation of the Investigation Unit’s actions related to that encumbrance; (3)

processing of the two rejected withdrawal requests using unencumbered funds in

his account; and (4) access to his earned wages so that he could purchase basic

necessities and typing materials. Id., Exhs. A & B. It appears that Lopez believed

his funds had been frozen by or at the request of the Investigation Unit in

retaliation for complaining about delays and for not cooperating.

      In written responses to Lopez’s grievances, Middlebrooks explained that

Lopez’s first request could not be granted because the encumbrance came at the

request of the United States Attorney. Specifically, in November 2009, the United

States Attorney’s Office in the Southern District of Florida had applied for and

obtained two writs of garnishment in order to collect the amount of the criminal

fines “plus statutory interest.” The writs directed FCC Coleman to “immediately

withhold” from Lopez “any property or assets” of Lopez “and retain it in your


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possession until you receive instructions from the Court which will tell you what to

do with the property.” Defs.’ Mot. to Dismiss, Exh. 2 at 3 (Doc. 42-2).

      Middlebrooks denied Lopez’s second request because, as the encumbrance

came at the request of the U.S. Attorney, he found no evidence of retaliation by

prison staff.    Second Am. Compl., Exh. C (Doc. 18).         As for Lopez’s third

request—to have his withdrawals processed using unencumbered funds—

Middlebrooks found it duplicative of the first request. Finally, Middlebrooks

granted Lopez’s fourth request in part and released the freeze on his earned wages.

Lopez appealed Middlebrooks’s responses, and they were affirmed at three levels,

including at the national level by Defendant Harrell Watts (BOP Administrator of

National Inmate Appeals).

      In addition to BOP grievances, Lopez also filed several Freedom of

Information Act (“FOIA”) requests that he says were denied or “ignored.” Id.

¶ 10, 12, 15. In a FOIA Request dated November 11, 2009, (later designated as

“No. 10-02251”), Lopez sought information related to the initial encumbrance of

his account in November 2009, including the memorandum from the Warden

authorizing the encumbrance.      Id., Exh. E.    BOP provided nineteen pages of

documents in response.      Lopez appealed.      On March, 3, 2010, the Office of

Information Policy at the U.S. Department of Justice affirmed the BOP’s action,

concluding that the response constituted a “full release of all responsive records”


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and that BOP “conducted an adequate, reasonable search for records responsive to

[Lopez’s] request.” Id., Exh. F.

      Lopez appears to have filed two additional FOIA requests, dated April 28,

2010, and May 25, 2010, for information related to the freezing of account funds

on specific dates after the initial encumbrance ($7,474 on March 31; $61 on April

21; and $14 on May 17). Id., Exh. H. He also filed a FOIA request, dated August

19, 2010, for information related to the district court’s issuance of the garnishment

orders and the amount he still owed in fines.

      In February 2010, Lopez filed an administrative claim for $75,000 in

damages under the Federal Tort Claims Act based on the “ill-advised and

unwarranted” encumbrance on his account. Id., Exh. G. Campbell denied this

claim in a letter dated July 9, 2010, explaining that Lopez’s trust account had been

encumbered in accordance with the two writs of garnishment and that there was no

evidence of negligence on the part of BOP employees.

      Throughout this time, Lopez alleged, Church “kept mute about all

violations” Lopez was enduring, even though, as trustee of his trust account, she

“had a fiduciary duty to protect and defend that account.” Id. ¶ 16.

B.    Procedural History

      Lopez filed his initial pro se complaint in the Middle District of Florida in

February 2011 and amended his complaint the following month. He later filed the


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operative second amended complaint in December 2011, naming as defendants the

United States, the United States Department of Justice (“DOJ”), Ayers, Bengford,

Campbell, Church, Kajander, Middlebrooks, Mora, and Watts.

      Lopez raised claims under (1) the Federal Tort Claims Act (“FTCA”), for

the “negligence, assault and injury, fraud, retaliation, violation of fiduciary duty,

and an abuse of authority or discretion” of the various defendants; (2) Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999

(1971), based on the individual defendants’ violation of his rights to (a) “be free

from unreasonable seizure of his property, retaliation, and from subjection to

disparity”; (b) security in his trust account; and (c) access to the courts; (3) FOIA,

based on DOJ’s and BOP’s “failure to time[ly] and properly respond, and/or to

respond at all” to his FOIA requests; and, finally, (4) the Administrative Procedure

Act (“APA”), based on BOP’s allegedly arbitrary and capricious actions and its

failure to follow its own policies.       As relief, Lopez requested $75,000 in

compensatory damages, plus punitive damages; the processing of his FOIA

requests; and declaratory and injunctive relief regarding BOP’s alleged violation of

its own policies.

      The United States, on behalf of itself and most of the individual defendants,

moved to dismiss Lopez’s complaint on various grounds, including the doctrines of




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sovereign immunity and qualified immunity. 2 In response, Lopez filed a motion

requesting discovery to refute points raised in the motion to dismiss, such as

whether the court had personal jurisdiction over Watts, whether the defendants

were acting within the scope of their discretionary authority, and whether Lopez

exhausted his FOIA administrative remedies. A magistrate judge denied Lopez’s

discovery request in an order addressing various motions. Lopez did not appeal

the magistrate judge’s ruling to the district court.

       Lopez responded in opposition to the United States’s motion to dismiss.

According to Lopez, the writs of garnishment did not immunize the individual

defendants from liability because they could still be held liable for their actions

both before and after the writs issued. Lopez expressly stated for the first time his

belief that Mora and the Investigation Unit asked the U.S. Attorney to apply for the

writs to punish him for complaining about the problems he faced with his

withdrawal requests. In doing so, Lopez claimed, the defendants retaliated against

him for exercising his First Amendment right of free speech.                      Lopez also

complained that his rights to property and due process had been violated because

the defendants froze all his funds, not just the $45,000 total fine amount.

       At the court’s request, the United States filed, on August 15, 2013, a

supplement to its motion to dismiss addressing Lopez’s FOIA Request No. 10-

       2
         The United States noted that not all defendants had been served and that some of the
individual defendants had not yet been approved for representation by the Department of Justice.
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02251. The United States attached various documents related to Lopez’s FOIA

requests, including a declaration from Christine Greene, the FOIA and Privacy Act

Administrator for BOP’s regional office that handled requests arising from United

States Prison Coleman. Greene indicated that she had handled Request No. 10-

02251 and that Lopez had filed one other FOIA request, designated as No. 10-

07847, which also requested all documents related to the freezing of his trust

account.

       On August 27, 2013, the district court entered an order granting the United

States’s motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P. The court found

that qualified immunity shielded the individual defendants from Lopez’s Bivens

claims because the defendants were simply complying with court orders. With

regard to the FTCA claim, and in light of the writs of garnishment, the court

concluded that Lopez’s allegations failed to state a claim for negligence. As for

the FOIA claims, the court determined that BOP’s response to Request No. 10-

02251 was reasonable and that Lopez had neither identified any document he

believed BOP failed to disclose nor alleged that BOP’s search was not reasonable

or in bad faith.3     Finally, Lopez’s APA claim failed, according to the court,




       3
         Lopez did do so in a response to the United States’s supplemental motion to dismiss,
which he submitted on August 26, 2013, but the response was not considered by the court
because it was not received until after the court entered judgment.
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because Lopez did not “allege with any specificity how the defendants violated the

[APA].” The district court entered judgment dismissing the action.

       Lopez timely moved to reconsider the judgment under Rules 52(b) and 59(e)

of the Federal Rules of Civil Procedure. He said that the district court ignored

some material allegations, including that retaliation by prison staff caused the writs

of garnishment to be issued, that the encumbrance on his account was not limited

to the $45,000 fine amount, and that his FOIA claims were not limited to request

No. 10-02251, to which BOP’s response was inadequate, but also were based on

BOP’s failure to respond to three other FOIA requests. Lopez also alleged that the

court failed to address his other constitutional claims, including First Amendment

retaliation.

       In July 2014, the district court denied Lopez’s motion for reconsideration.

The court specifically addressed Lopez’s arguments related to his FOIA requests.

Relying on Greene’s declaration, attached to the United States’s supplemental

motion to dismiss, the district court concluded that BOP was not required to

separately respond to the April 28, 2010, and May 25, 2010, requests because BOP

had released the documents responsive to those requests in response to Request

No. 10-07847. The court found that dismissal for improper venue was appropriate

for Lopez’s challenge relating to the August 19, 2010, request.           Lopez now

appeals.


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                         II. STANDARDS OF REVIEW

      We review de novo the dismissal of a complaint under Rule 12(b)(6),

accepting as true the facts alleged in the complaint and construing them in the light

most favorable to the plaintiff. Hunt v. Aimco Props, L.P., 814 F.3d 1213, 1221

(11th Cir. 2016). We review for an abuse of discretion the dismissal of a claim for

improper venue, Algodonera De Las Cabezas, S.A. v. Am. Suisse Capital, Inc., 432

F.3d 1343, 1345 (11th Cir. 2005), the denial of discovery, Holloman v. Mail–Well

Corp., 443 F.3d 832, 837 (11th Cir. 2006), and the denial of a motion to

reconsider, Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).

      We liberally construe pro se pleadings. Campbell v. Air Jamaica Ltd., 760

F.3d 1165, 1168 (11th Cir. 2014). However, the leniency afforded pro se litigants

does not give courts license to serve as de facto counsel or to rewrite an otherwise

deficient pleading in order to sustain an action. Id. at 1168–69.

                                 III. DISCUSSION

      To survive dismissal for failure to state a claim, the factual allegations in the

complaint, accepted as true, must be sufficient “to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,

1965 (2007). In other words, a complaint must contain sufficient factual matter to

“state a claim to relief that is plausible on its face.” Id. at 570, 127 S. Ct. at 1974.

The well-pled facts in the complaint must be sufficient to “permit the court to infer


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more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,

679, 129 S. Ct. 1937, 1950 (2009).

      A complaint that offers “labels and conclusions,” a “formulaic recitation of

the elements of a cause of action,” or “naked assertions devoid of further factual

enhancement” will not be sufficient to withstand a motion to dismiss. Id. at 678,

129 S. Ct. at 1949 (internal quotation marks omitted; alteration adopted).

Likewise, we have stated that “conclusory allegations, unwarranted deductions of

facts[,] or legal conclusions masquerading as facts will not prevent dismissal.”

Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

A.    Discovery

      Lopez first contends that he should have been granted discovery before the

district court dismissed his complaint. We cannot, however, review the magistrate

judge’s order denying Lopez’s discovery request because Lopez did not timely

object to the order. See Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361, 1365

(11th Cir. 2007) (“[W]here a party fails to timely challenge a magistrate’s

nondispositive order before the district court, the party waived his right to appeal

those orders in this Court.”). Objections to a magistrate judge’s non-dispositive

order, such as a discovery order, must be filed with 14 days after a party is served

with a copy of the order, and “[a] party may not assign as error a defect in the order




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not timely objected to.” Fed. R. Civ. P. 72(a). Here, no timely objections were

filed, so Lopez waived review of the discovery order. See Smith, 487 F.3d at 1365.

      In any case, the magistrate judge properly denied discovery before the

district court dismissed the case under Rule 12(b)(6). While discovery may be

necessary and appropriate to resolve a factual challenge to the district court’s

jurisdiction, discovery is not necessary where, as here, the court must resolve a

facial challenge to the legal sufficiency of a claim, such as a motion to dismiss

under Rule 12(b)(6). Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367

(11th Cir. 1997). Though the United States raised jurisdictional arguments in its

motion to dismiss, the district court dismissed the case under Rule 12(b)(6).

B.    Bivens and Qualified Immunity

      In Bivens, the Supreme Court recognized an implied cause of action for

damages against federal officials based on the violation of a federal constitutional

right. Iqbal, 556 U.S. at 675, 129 S. Ct. at 1947 (noting that a Bivens action is the

federal analog to an action against state officials under 42 U.S.C. § 1983);

Hartman v. Moore, 547 U.S. 250, 254 n.2, 126 S. Ct. 1695, 1700 n.2 (2006).

However, qualified immunity protects officials performing discretionary functions

from suits in their individual capacities unless their conduct violates clearly

established statutory or constitutional rights of which a reasonable person would

have known. Mathews v. Crosby, 480 F.3d 1265, 1269 (11th Cir. 2007).


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         To be entitled to qualified immunity, officials bear the initial burden of

showing that they were acting within the scope of their discretionary authority.

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). The

burden then shifts to the plaintiffs to show that the defendant is not entitled to

qualified immunity by alleging (1) a violation of a constitutional right (2) that was

“clearly established” at the time of the alleged violation. Id. When a district court

is evaluating a Rule 12(b)(6) motion to dismiss based on qualified immunity, it

“should grant qualified immunity if the plaintiff’s complaint fails to allege a

violation of a clearly established constitutional or statutory right.” Williams v. Bd.

of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300 (11th Cir. 2007).

         Initially, all actions allegedly taken by the individual defendants were within

the scope of their discretionary authority. Government officials act within the

scope of discretionary authority when performing a legitimate job-related function

through means that were within their power to utilize. Holloman, 370 F.3d at

1265–66. Here, Mora’s and the Investigation Unit’s alleged actions meet this test.

They had been authorized to approve withdrawal requests over $250 and, to that

end, to investigate the funds in inmate accounts. Likewise, Middlebrooks, as

Warden, was authorized by regulations to encumber funds in inmate trust accounts,

and he was acting pursuant to writs of garnishment issued by a federal district

court.     Accordingly, the defendants met their initial burden of showing that


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qualified immunity applied, and the burden then shifted to Lopez to show that the

defendants were not entitled to qualified immunity.

       Lopez first contends that Mora and the Investigation Unit retaliated against

him for filing grievances by (a) delaying his withdrawal requests and (b) triggering

the freeze on his account. The First Amendment forbids prison officials from

retaliating against prisoners for exercising their right of free speech by filing prison

grievances. Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003). To prove a

First Amendment retaliation claim, an inmate must show that (1) his speech was

constitutionally protected, (2) he suffered an adverse action that would likely deter

a person of ordinary firmness from engaging in such speech, and (3) a causal

relationship between the retaliatory action and the protected speech existed. Smith

v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).

       Liberally construing Lopez’s complaint and accepting his factual allegations

as true, Lopez has not sufficiently alleged a violation of his clearly established

First Amendment rights. 4         First, we can find no plausible causal relationship

between the excessive delays in processing his withdrawal requests and the

protected speech. The processing problems began in January 2009, when prison

officials began investigating inmate funds for illicit sources. Lopez complained,


       4
         The district court did not address Lopez’s retaliation claim, but, on de novo review, we
may affirm on any adequate ground supported by the record. Sosa v. Chase Manhattan Mortg.
Corp., 348 F.3d 979, 983 (11th Cir. 2003).
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and the processing delays continued, but Lopez did not allege that the processing

problems got any worse as a result of his complaints. In fact, he alleged that some

of his withdrawal requests were processed after he complained.            Under the

circumstances, the fact that Lopez’s September 2009 withdrawal requests were

delayed after he engaged in protected speech, just as his earlier requests had been

delayed before he engaged in protected speech, does not show a plausible causal

connection between the alleged retaliation and the protected speech.

      Second, Lopez’s allegations do not plausibly connect his protected speech

with the encumbrance of his funds. While Lopez appears to have believed that the

Investigation Unit contacted the U.S. Attorney’s Office in retaliation for filing

grievances, he did not allege that fact in his second amended complaint, and, in any

case, he provided no “further factual enhancement” for this speculative and

unsupported assertion. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Such

“unwarranted deductions of facts” will not prevent dismissal. Oxford Asset Mgmt.,

Ltd., 297 F.3d at 1188.       In addition, Lopez’s contention that Mora and the

Investigation Unit delayed his requests for the purpose of allowing the U.S.

Attorney to apply for the writs of garnishment is inconsistent with other allegations

in his complaint, specifically that Mora and Bengford (of the Investigation Unit)

had approved the two September 2009 withdrawal requests that were later voided

by Campbell after the writs issued.


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       Lopez also claims that his rights to due process, security in his account, and

access to courts were violated when the defendants, without notice, expanded the

freeze on his account beyond the $45,000 fine amount and left him without funds

to buy typing materials for court. However, despite his assertions to the contrary,

the writs of garnishment were not limited to $45,000, the amount of the fines

imposed in 1992 and 1993. The writs directed FCC Coleman to withhold from

Lopez “any property or assets” within the prison’s custody, noting that Lopez may

be responsible for the amount of the fines plus “statutory interest.”5 Based on the

writs, it was reasonable for the defendants to expand the encumbrance, initially set

at $45,000, to include “any property or assets” of Lopez, even if doing so may

have affected Lopez’s ability to purchase typing materials and other basic needs.

       Lopez also has not shown that he was entitled to notice before his account

was frozen, and, in any case, adequate process was available to him to challenge

the validity of the writs of garnishment through his criminal cases. 6 See, e.g.,

United States v. Lopez, 466 F. App’x 829 (11th Cir. 2012). “All that due process

requires . . . is a post-deprivation means of redress for property deprivations

satisfying the requirements of procedural due process.” McKinney v. Pate, 20 F.3d

1550, 1563 (11th Cir. 1994) (en banc) (internal quotation marks omitted; alteration


       5
         According to the United States, Lopez’s total liability, including interest, when the writs
issued was over $70,000, more than the funds in his trust account at the time.
       6
         The validity of the writs is not at issue in this case.
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adopted). Accordingly, Lopez has not shown that the defendants violated his

clearly established due-process rights.

      In sum, Lopez has not sufficiently alleged a violation of a clearly established

constitutional right. The district court properly dismissed his Bivens claims against

the individual defendants.

C.    Federal Tort Claims Act

      Based on the same alleged actions underlying his Bivens claims, Lopez

alleged that the United States was liable under the FTCA. Through the FTCA, the

United States has, as a general matter, waived its sovereign immunity from suits

based on state-law tort claims. Zelaya v. United States, 781 F.3d 1315, 1322 (11th

Cir. 2015). An action against the United States under the FTCA is the exclusive

remedy for “injury or loss of property” caused by “the negligent or wrongful act[s]

or omission[s]” of federal employees acting within the scope of their employment.

28 U.S.C. §§ 2679, 1346(b); United States v. Smith, 499 U.S. 160, 165–66, 111 S.

Ct. 1180, 1184–85 (1991).

      Here, Lopez has not alleged a claim cognizable under the FTCA. In the

underlying administrative claim Lopez filed as a prerequisite to suit under the

FTCA, see Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994) (“A

federal court may not exercise jurisdiction over a suit under the FTCA unless the

claimant first files an administrative claim with the appropriate agency.” (citing 28


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U.S.C. § 2675(a)), he alleged that the encumbrance was “ill-advised and

unwarranted” and instigated by the Investigation Unit in collusion with the U.S.

Attorney. However, the encumbrance of his account, ordered by facially valid

writs of garnishment, was not “negligent or wrongful.” See 28 U.S.C. §§ 2679,

1346(b). Nor has Lopez made a showing that the Investigation Unit breached a

duty owed to him by allegedly tipping off the U.S. Attorney, and Lopez’s claim of

First Amendment retaliation is not cognizable under the FTCA. See F.D.I.C. v.

Meyer, 510 U.S. 471, 477–478, 114 S. Ct. 996, 1001 (1994) (constitutional tort

claims are not cognizable under the FTCA). Lopez also alleged that the failure to

provide him with copies of the writs of garnishment and the answer to the writs

amounted to gross negligence, but these actions alone did not cause any “loss of

property.”

      To the extent Lopez argues that other acts or omissions of the defendants

violated the FTCA, he did not clearly present these grounds for liability in his

administrative claim, so we lack jurisdiction to review them. See Dalrymple v.

United States, 460 F.3d 1318, 1324 (11th Cir. 2006) (“The FTCA requires that

each claim and each claimant meet the prerequisites for maintaining a suit against

the government.”). In any case, he has not identified with any specificity how the

acts or omissions of the defendants were tortious under state law. See Zelaya, 781

F.3d at 1324 (“[A] state tort cause of action is a sine qua non of FTCA jurisdiction,


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and we have dismissed FTCA suits that have pleaded breaches of federal duties

without identifying a valid state tort cause of action.”).        Lopez’s broad and

conclusory allegations of wrongdoing are insufficient to raise his right to relief

above the speculative level. See Twombly, 550 U.S. at 555, 127 S. Ct. at 1965;

Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (the allegations must “permit the court to

infer more than the mere possibility of misconduct”). Accordingly, the district

court properly dismissed Lopez’s FTCA claim.

D.    Administrative Procedure Act

      A person who suffers a legal wrong because of “final agency action” has a

right to judicial review under the APA when “there is no other adequate remedy in

a court.” 5 U.S.C. §§ 702, 704. The standards of review under the APA are set

forth in 5 U.S.C. § 706. “Agency action” “includes the whole or a part of an

agency rule, order, license, sanction, relief or the equivalent or denial thereof, or

failure to act.” Id. § 551(13).

      Here, the district court correctly dismissed Lopez’s APA claim because

Lopez did not allege facts sufficient to establish a legal wrong done to him by

agency action for which there was no other adequate remedy in court. The APA is

not available with regard to Lopez’s FOIA claims because the FOIA itself provides

an adequate remedy in court. See Id. § 552(a)(4)(B). Lopez has not otherwise

identified an “agency action” that has caused him harm. Instead, Lopez’s claims


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focus on actions taken by individual defendants allegedly in violation of agency

policy. Accordingly, Lopez has not shown that the APA applies.

E.    Freedom of Information Act

      The “FOIA is a broad disclosure statute which evidences a strong public

policy in favor of public access to information in the possession of federal

agencies.” Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1555 (11th Cir. 1990)

(internal quotation marks omitted), rev’d on other grounds sub nom. U.S. Dep’t of

State v. Ray, 502 U.S. 164, 112 S. Ct. 541 (1991). The FOIA requires a federal

agency, upon a request for records that reasonably describes documents held by

that agency, to make those documents promptly available to the requester unless an

exemption from disclosure applies. 5 U.S.C. § 552(a)(3), (b). An agency must

make reasonable efforts to search for the records identified in a FOIA request. Id.

§ 552(a)(3)(C).

      A plaintiff may file a complaint in federal court under the FOIA after

exhausting his administrative remedies, and the district court has jurisdiction “to

enjoin the agency from withholding agency records and to order the production of

any agency records improperly withheld from the complainant.”                   Id.

§ 552(a)(4)(B). In an action under the FOIA, the agency bears the burden of

showing that its search was “reasonable.” Ray, 908 F.2d at 1558. The agency

must demonstrate that it conducted a search reasonably calculated to uncover all


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relevant documents, not that its search was exhaustive, and the agency may meet

its burden with relatively detailed affidavits of responsible officials. Id. If the

agency satisfies its burden, “the burden shifts to the requester to rebut the agency’s

evidence by showing that the search was not reasonable or was not conducted in

good faith.” Id. We have recognized that FOIA cases generally should be handled

on motions for summary judgment once the documents at issue are properly

identified. Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235,

1243 (11th Cir. 2008).

      Liberally construed, Lopez’s second amended complaint alleged that DOJ

and BOP inadequately responded to one FOIA request, No. 10-02251, and failed to

respond to three other FOIA requests, dated April 28, May 25, and August 19 of

2010. The district court, in turn, concluded that the response to No. 10-02251 was

reasonable, that the BOP did not need to respond to the April 28 and May 25

requests because Lopez received the requested information in response to a

different FOIA request, No. 10-07847, and that the challenge to the August 19

FOIA request was filed in the wrong venue. After careful review, we vacate the

dismissal of Lopez’s FOIA claims and remand for further proceedings.

      First, Lopez sufficiently alleged that he did not receive an adequate response

to FOIA Request No. 10-02251. In that request, Lopez specifically asked for the

Warden’s memorandum authorizing the encumbrance. Lopez appears to have been


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referring to a BOP Program Statement entitled, “Trust Fund/Deposit Fund

Manual,” P.S. 4500.11, which states that “[i]t is essential to document all

encumbrances” and that the Warden generally must prepare a signed memorandum

“indicating the amount to be encumbered and the reason for the encumbrance.”

P.S. 4500.11(8.8), available at https://www.bop.gov/policy/progstat/4500_011.pdf.

It does not appear that Lopez received the Warden’s memorandum in response to

his FOIA request. Thus, Lopez plausibly alleged that BOP failed to reasonably

respond to his FOIA request. As with most FOIA cases, this claim should be

handled on a motion for summary judgment. See Miccosukee Tribe, 516 F.3d at

1243.

        Second, the district court procedurally erred by relying on matters outside of

the pleadings in dismissing Lopez’s claims with regard to the alleged April 28 and

May 25 FOIA requests. See Griffith v. Wainwright, 772 F.2d 822, 824 (11th Cir.

1985) (stating that we may raise this issue sua sponte). Generally, if the district

court considers matters outside the pleadings in ruling on a Rule 12(b)(6) motion,

“the motion must be treated as one for summary judgment under Rule 56.” Fed. R.

Civ. P. 12(d). The court must give the parties notice of the conversion and “a

reasonable opportunity to present all the material that is pertinent to the motion.”

Id. We apply this notice requirement strictly: if notice is not provided, “the case

will be reversed and remanded so that the district court may provide the non-


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moving party with adequate notice.” Jones v. Auto. Ins. Co. of Hartford, Conn.,

917 F.2d 1528, 1532 (11th Cir. 1990); see Herron v. Beck, 693 F.2d 125, 127 (11th

Cir. 1982) (“[A] court should be particularly careful to ensure proper notice to a

pro se litigant.”).

       Here, in concluding that the BOP did not need to respond to Lopez’s April

28 and May 25 FOIA requests, the district court relied on a FOIA Administrator’s

declaration that was attached to the United States’s supplemental motion to

dismiss. In particular, the court relied on facts in the declaration regarding BOP’s

response to a FOIA request that was not alleged in the complaint, No. 10-07847.

Thus, the court considered matters outside the pleadings but did not treat the

motion to dismiss as one for summary judgment and give Lopez notice and an

opportunity to respond. Accordingly, “the case will be reversed and remanded so

that the district court may provide the non-moving party with adequate notice.”

Jones, 917 F.2d at 1532.

       Finally, we find that a lack of notice likewise calls for vacating the dismissal

for improper venue of Lopez’s FOIA claim based on the August 19 request for

information related to the garnishment proceedings in the Southern District of

Florida. While “a district court may raise on its own motion an issue of defective

venue[,] . . . the court may not dismiss without first giving the parties an

opportunity to present their views on the issue.” Lipofsky v. New York State


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Workers Comp. Bd., 861 F.2d 1257, 1258 (11th Cir. 1988). Here, the court raised

the issue of improper venue sua sponte without giving Lopez an opportunity to

present his views on the issue, including whether transfer, as opposed to dismissal,

was appropriate. See 28 U.S.C. § 1406 (“The district court of a district in which is

filed a case laying venue in the wrong division or district shall dismiss, or if it be in

the interest of justice, transfer such case to any district or division in which it could

have been brought.”).

      Consequently, we vacate the dismissal of Lopez’s FOIA claims and remand

to the district court for further proceedings.

                                 IV. CONCLUSION

      In sum, and for the reasons stated, we affirm the dismissal of Lopez’s claims

under Bivens, the FTCA, and the APA. We vacate the dismissal of Lopez’s FOIA

claims and remand for further proceedings consistent with this opinion.

      AFFIRMED, IN PART; VACATED AND REMANDED, IN PART.




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