                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1651
                                      ____________

                                THURSTON SANDERS,
                                                Appellant

                                             v.

                  UNITED STATES OF AMERICA; MR. WOMACK,
                       Supervisor of Education Programs - West;
                  MS. JOHN PIERRE, Assist. Supervisor of Education;
                  NEW JERSEY DEPARTMENT OF CORRECTIONS
                       __________________________________

                     On Appeal from the United States District Court
                            for the District of New Jersey
                             (D.N.J. No. 1-17-cv-01218)
                           District Judge: Noel L. Hillman
                       __________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 2, 2018
                 Before: MCKEE, COWEN, and ROTH, Circuit Judges

                            (Opinion filed: October 30, 2019)
                                     ____________

                                        OPINION*
                                      ____________


PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Thurston Sanders appeals from an order of the District Court dismissing his pro se

complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A). For the reasons that

follow, we will affirm.

         Sanders, then an inmate at the Federal Correctional Institution, Fort Dix, N.J., filed

a complaint and in forma pauperis application in the United States District Court for the

District Court of New Jersey.1 Sanders named as defendants the United States of

America, Mr. Womack, the Supervisor of Education Programs at FCI Fort Dix, and Ms.

John Pierre, the Assistant Supervisor of Education Programs, and alleged that they had

terminated his participation in the Lincoln Technical Institute Heating, Ventilation and

Air Conditioning (“HVAC”) Training Program because he was “too old.”2 Sanders

asserted jurisdiction under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), and the Age Discrimination in Federally Assisted

Programs Act (“ADFAP”). Complaint, ¶ 1a. Sanders sought $1,200,000.00 in damages

and alleged that he had exhausted his administrative remedies.

         The District Court granted Sanders leave to appeal in forma pauperis and his

complaint was filed. Then, in an order entered on February 16, 2018, the Court

dismissed the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915(A) for

failure to state a claim upon which relief may be granted, determining that the ADFAP,


1
    Sanders has since been released from prison.
2
  Sanders also named as a defendant the New Jersey Department of Corrections, but, as
the District Court noted, there are no allegations in the complaint against the state
Department of Corrections. This defendant thus was properly dismissed under §§
1915(e)(2)(B) and 1915A.
                                               2
42 U.S.C. §§ 6101-6107, does not apply to federal agencies, such as the Bureau of

Prisons, which administer their own funds. See Sanders v. United States, 2018 WL

918889 (D.N.J. Feb. 16, 2018). The Court further determined without discussion that

Sanders had identified no Bivens claim for relief, id. at *1 n.2, and denied Sanders leave

to amend because any amendment would be futile.

       Sanders appeals. We have jurisdiction under 28 U.S.C. § 1291. In his pro se

brief, Sanders contends that the District Court erred in dismissing his claim under the

ADFAP, and he seeks the appointment of counsel and discovery. We note that he has

included in the Appendix a copy of a letter from the BOP Northeast Regional Counsel,

rejecting his administrative tort claim for age discrimination and psychological distress

on the ground that he did not allege a physical injury actionable under the Federal Tort

Claims Act, 28 U.S.C. § 1346(b)(2), § 2672.

       We will affirm. Because Sanders was proceeding in forma pauperis and was

incarcerated, his complaint was subject to sua sponte screening for dismissal under 28

U.S.C. §§ 1915(e)(2)(B) and 1915(A). We agree with the District Court that Sanders’

claim is not cognizable under the ADFAP. That Act provides that “no person in the

United States shall, on the basis of age, be excluded from participation in, be denied the

benefits of, or be subject to discrimination under, any program or activity receiving

Federal financial assistance.” 42 U.S.C. § 6102. It defines “program or activity” as

including the operations of certain types of state and local government entities,

educational institutions, and private organizations, which receive federal funding for their

programs, id. at § 6107(4), but it does not include federal agencies, such as the Bureau of

                                             3
Prisons, which administer their own funds. See Maloney v. Social Security

Administration, 517 F.3d 70, 74-75 (2d Cir. 2008) (per curiam). The ADFAP does not

apply to “programs directly administered by the federal government.” Id. at 75. Sanders

specifically alleged that federal employees of the BOP, in their capacities as the

Supervisor and Assistant Supervisor of Educational Programs at FCI Fort Dix, denied

him the benefit of participating in one of the BOP’s educational programs for inmates.

Thus, his complaint concerns actions taken by a federal agency administering its own

funds.

         This does not mean that he is without a legal remedy, however, or that the BOP

has a license to discriminate on the basis of age. When such discrimination occurs, the

Constitution itself or the BOP’s own Program Statements may provide an appropriate

remedy. With respect to federal constitutional rights, a Bivens action is the federal

equivalent of civil rights suits brought against state officials under 42 U.S.C. § 1983, and

we thus consider Sanders’ age discrimination claim against the individual defendants to

have been brought under Bivens as well. See Marshall v. Federal Bureau of Prisons, 518

F. Supp.2d 190, 193 (D.D.C. Oct. 30, 2007). Here, the District Court determined that the

complaint could not proceed under § 1915(2)(B)(ii) and Rule 12(b)(6). Rule 12(b)(6)

tests the sufficiency of the factual allegations contained in the complaint. See Kost v.

Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint should be dismissed under

Rule 12(b)(6) if the plaintiff is unable to plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).



                                               4
Although factual averments must be accepted as true, legal conclusions are disregarded.

See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

       Assuming that Sanders intended to state due process and equal protection

violations, we are not persuaded that a Bivens claim could proceed. In the Marshall case,

the inmate sued BOP employees because he too had requested to participate in the HVAC

training program but was denied participation because he did not meet the program’s age

restriction of 18 to 25 years. 518 F.Supp.2d at 193. The District Court for the District of

Colombia held that the inmate could not state a claim upon which relief may be granted

because inmates do not have a due process right to participate in vocational and

educational programs, id. at 194 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995), and

because age is not a suspect classification under the Equal Protection Clause, id. at 195

(citing Kimel v. Florida Board of Regents, 528 U.S. 62, 83 (2000) (“Old age also does

not define a discrete and insular minority because all persons, if they live out their normal

life spans, will experience it.”)). Because rational basis analysis applies to an inmate’s

claim of age discrimination in violation of the Equal Protection Clause, we consider only

whether the defendants’ actions here were rationally related to a legitimate prison

objective, see Marshall, 518 F. Supp.2d at 195. This is a difficult test for Sanders to

meet. As he himself acknowledges in his complaint, HVAC training is a post-secondary

school educational opportunity which can lead to small business ownership and thus a

lifetime of earnings. Accordingly, we agree with the Marshall court that reserving that

opportunity for young inmates is not irrational. Id. at 196.



                                              5
       Last, we note that the Bureau of Prisons Program Statement pertaining to Non-

Discrimination Toward Inmates states that Bureau staff “shall not discriminate against

inmates on the basis of race, religion, national origin, sex, disability, or political belief,”

Program Statement 1040.04, https://www.bop.gov/policy/progstat/1040_004.pdf, but it

does not prohibit discrimination on the basis of age.

       For the foregoing reasons, we will affirm the order of the District Court dismissing

the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A). Sanders’ requests in his

pro se brief for appointment of counsel and discovery are denied.




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