                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         November 10, 2005
                                  TENTH CIRCUIT
                                                                           Clerk of Court

 ALFREDO ALVAREZ,

               Petitioner-Appellant,                     No. 05-6129
          v.                                           (W.D. of Okla.)
 ALBERTO R. GONZALES,         *
                                  and              (D.C. No. CV-04-774-L)
 T. C. PETERSON, Warden

               Defendants-Appellees.


                           ORDER AND JUDGMENT           **




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           ***




      Plaintiff-Appellant Alfredo Alvarez, a federal prisoner appearing pro se,

appeals the district court’s dismissal of his civil rights complaints. Alvarez also




      *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Respondent
requests that Alberto R. Gonzales be substituted for John Ashcroft as the
respondent in this case.
      **
          This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      ***
          After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
seeks appointment of counsel. We affirm the district court’s order and deny the

motion for appointment of counsel.

                                    I. Background

      Alvarez filed a Bivens action against various federal officials arising from

his incarceration at the Federal Correctional Institution in El Reno, Oklahoma.

He alleges numerous constitutional violations suffered during his confinement in

El Reno as well as violations of the protections afforded by Article 36 of the

Vienna Convention on Consular Relations. Upon the magistrate judge’s

recommendation, the district court denied each of Alvarez’s claims. Because the

parties are familiar with the facts, we will not restate them here.

                                     II. Analysis

      We construe a pro se plaintiff’s complaint liberally.     Haines v. Kerner , 404

U.S. 519, 520–21 (1972). Nonetheless, 28 U.S.C. § 1915A acts as a barrier to a

prisoner’s suit if it is frivolous, malicious, or fails to state a claim for which relief

can be granted. We review the district court’s dismissal under § 1915A de novo.

McBride v. Deer , 240 F.3d 1287, 1289 (10th Cir. 2001).

                 A. Failure to Provide Adequate Medical Treatment

      Alvarez first claims damages and equitable relief based on the alleged

failure of prison officials to provide him with adequate medical treatment

following an eye injury incurred while on work duty in El Reno. As the district

court found, Alvarez’s claim fails for one basic reason: the compensation benefits

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provided for by 18 U.S.C. § 4126(c)(4) constitute the exclusive remedy for

“injuries suffered . . . in any work activity in connection with the maintenance or

operation of the institution [in which the inmates are] confined.” 18 U.S.C.

§ 4126(c)(4); see United States v. Demko , 385 U.S. 149, 153 (1966) (accepting

§ 4126 “as an adequate substitute for a system of recovery by common-law

torts”); United States v. Gomez , 378 F.2d 938, 939 (10th Cir. 1967) (per curiam)

(holding that § 4126 “constitute[s] the exclusive remedy for injuries received by

federal prisoners while performing assigned prison tasks”). The § 4126 remedy

includes claims that subsequent negligence or inadequate medical care caused

further injury. 28 C.F.R. § 301.301(b) (2005) (noting that the statute applies to

inmates receiving “improper medical treatment of a work-related injury”).

      Accordingly, Alvarez is barred from litigating his   Bivens claim since the

cause of his original injury was work-related and compensable only under 18

U.S.C. § 4126.

                        B. Harassment, Threats, and Abuse

      Alvarez next claims damages and equitable relief based on alleged

harassment, threats, and verbal abuse by prison officials. He claims that a prison

officer stated to another officer that he would “burn this guy.” Additionally, he

alleges that another prison official antagonized him with a sexually inappropriate

comment. Mere verbal threats or harassment do not rise to the level of a

constitutional violation unless they create “terror of instant and unexpected

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death.” Northington v. Jackson , 973 F.2d 1518, 1524 (10th Cir. 1992). Here, the

officers’ comments, although inappropriate, do not suggest a show of deadly

force, thus failing to create “terror of instant and unexpected death.”

       Accordingly, without allegations of greater harms, Alvarez fails to assert a

constitutionally protected right.

                                     C. Retaliation

       Alvarez next claims that his administrative complaint regarding inadequate

medical treatment provoked retaliation from prison guards. He claims that after

he filed his complaint, prison guards questioned him regarding allegations of

knife possession; however, the investigation never resulted in any action against

Alvarez. He also alleges that his monthly salary for work duty was unjustifiably

reduced.

       In order to state a valid claim of retaliation, a plaintiff must “allege specific

facts showing retaliation [on account] of the exercise of the prisoner’s

constitutional rights,”   Frazier v. Dubois , 922 F.2d 560, 562 n.1 (10th Cir. 1990),

and “prove that ‘but for’ the retaliatory motive, the incidents to which [the

inmate] refers, including the disciplinary action, would not have taken place.”

Smith v. Maschner , 899 F.2d 940, 949–50 (10th Cir. 1990)        . Alvarez alleges no

fact that could establish the questioning “would not have taken place” but for his

administrative complaint. Therefore, the district court properly dismissed

Alvarez’s claim.

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               D. Vienna Convention on Consular Relations, Article 36

       Alvarez finally claims that he has been denied the protections afforded by

Article 36 of the Vienna Convention on Consular Relations (VCCR), namely that

as a foreign national he had a right to consular assistance following his arrest in

August 1997.    See VCCR art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261

(requiring officials upon request of the defendant to “inform the consular post of

the sending state if . . . a national of that state is arrested or committed to prison

. . . . The said authority shall inform the person concerned without delay of

[these] rights.”). He argues that a   Bivens claim arises from that denial.

       Neither the Supreme Court nor this circuit has held that Article 36 confers

individually enforceable rights. On the contrary, both courts have consistently

concluded that remedies for Article 36 violations in criminal proceedings, such as

suppression of evidence or dismissal of an indictment, are inappropriate or that

procedural rules preclude courts from considering the issue.      See Medellin v.

Dretke , 125 S. Ct. 2088 (2005) (dismissing writ as improvidently granted);     Breard

v. Greene , 523 U.S. 371, 376 (1998) (per curiam) (noting that Article 36

“arguably confers on an individual the right to consular assistance following

arrest,” yet ultimately holding that a procedural default prevented the claim from

being heard); United States v. Minjares-Alvarez     , 264 F.3d 980, 986 (10th Cir.

2001) (suppression);    United States v. Chanthadara   , 230 F.3d 1237, 1255–56 (10th



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Cir. 2000) (same). Numerous other circuits have reached the same conclusion.

See United States v. Li , 206 F.3d 56, 60 (1st Cir. 2000) (suppression and

dismissal); United States v. De La Pava , 268 F.3d 157, 165 (2d Cir. 2001)

(dismissal); Murphy v. Netherland , 116 F.3d 97, 100 (4th Cir. 1997) (procedural

default); United States v. Lawal , 231 F.3d 1045, 1048 (7th Cir. 2000)

(suppression); United States v. Ortiz , 315 F.3d 873, 886 (8th Cir. 2002)

(suppression); United States v. Lombera-Camorlinga        , 206 F.3d 882, 885 (9th Cir.

2000) (en banc) (suppression);     United States v. Duarte-Acero , 296 F.3d 1277,

1281–82 (11th Cir. 2002) (dismissal). In contrast, only two circuits have

definitively held that, in the context of a criminal proceeding, Article 36 does not

confer an individual right.    United States v. Jimenez-Nava , 243 F.3d 192, 198 (5th

Cir. 2001); United States v. Emuegbunam , 268 F.3d 377, 394 (6th Cir. 2001).

       Here, Alvarez recasts the traditional Article 36 claim, alleging instead a

private civil action for damages independent of the criminal proceeding. Thus

far, only the Seventh Circuit has addressed such a novel claim, holding that the

defendant had a private § 1983 right of action under Article 36.     Jogi v. Voges ,

425 F.3d 367, 385 (7th Cir. 2005).

       Despite the legal uncertainty, we nonetheless need not address the merits of

this claim here. Even if a    Bivens claim could arise under Article 36, Alvarez’s

claim is barred by the applicable limitations period. As noted in Article 36, any

rights “shall be exercised in conformity with the laws and regulations of the

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receiving State subject to the proviso, however, that the said laws and regulations

must enable full effect to be given to the purposes for which the rights accorded

under this Article are intended.” VCCR;      see Breard , 523 U.S. at 375 (holding

that “absent a clear and express statement to the contrary, the procedural rules of

the forum State govern the implementation of the treaty in that State”).     Bivens

actions “borrow the general personal injury limitations statute in the state where

the action arose.”   Van Tu v. Koster , 364 F.3d 1196, 1198 (10th Cir. 2004).

       Based on applicable Oklahoma law two years were available during which

Alvarez could have brought his claim. Okla. Stat. tit. 12, § 95(A)(3) (2004)

(imposing a two-year limitations period for a civil “action for injury to the rights

of another, not arising on contract . . . .”). Although the record is unclear as to

the exact date Alvarez was convicted, he has been incarcerated for approximately

eight years. Therefore, since Alvarez’s cause of action accrued, if at all, more

than two years prior to June 24, 2004, the date when he filed his complaint,

Alvarez’s claim is time barred.

       In conjunction with this claim, Alvarez also alleges constitutional

deprivations during his arrest and prosecution, such as denial of the rights to

effective assistance of counsel and due process, and requests monetary

compensation based on those allegations. Alvarez’s conclusory allegations

require us to assume that his conviction was obtained in violation of the

Constitution, which we cannot do under       Heck v. Humphrey since his conviction

                                            -7-
has not been disturbed.   See 512 U.S. 477, 486–487 (1994) (holding that a

plaintiff bringing a § 1983 action to recover damages for an allegedly

unconstitutional conviction “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”).

      Because Alvarez’s conviction remains undisturbed, the district court

properly dismissed this claim.

                                  III. Conclusion

      Accordingly, we AFFIRM the order of the district court for substantially

the same reasons given by the magistrate judge and the district court, DENY the

request for an order of injunction, and DENY the motion for appointment of

counsel.

                                       Entered for the Court

                                       Timothy M. Tymkovich
                                       Circuit Judge




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