                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                          June 7, 2007
                                FOR THE FIFTH CIRCUIT
                                 _____________________
                                                                                   Charles R. Fulbruge III
                                                                                           Clerk
                                         No. 06-11265
                                       Summary Calendar
                                    _____________________


JOSE EDUARDO TOLEDO; CHRISTIAN EDUARDO TOLEDO; CAROLINA
DIANE TOLEDO,

                                                                     Plaintiffs - Appellants,

       v.

BUREAU OF PRISONS; IAN FLEMING, prison warden; DAVID
BURKELBILE, prison assistant warden; RICHARD ELMER, prison
captain; ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA;
U.S, ATTORNEY FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH
DIVISION,
                                                         Defendants - Appellees.
              __________________________________________________

                         Appeal from the United States District Court
                        for the Northern District of Texas, Fort Worth
                                  USDC No. 4:05-CV-416
                 __________________________________________________

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

       Plaintiffs-appellants José Eduardo Toledo (“Toledo”), Christian Eduardo Toledo, and

Carolina Diane Toledo appeal the district court’s dismissal of their claims against the above

named defendants-appellants. We dismiss the appellees’ motion to dismiss and affirm for the

following reasons:


       *
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
1.          The only proper defendant in a suit under the Federal Tort Claims Act is

     the United States. Atorie Air, Inc., v. F.A.A. of U.S. Dept. of Transp., 942 F.2d

     954, 957 (5th Cir. 1991). Toledo did not bring suit against the United States.

     Thus, the district court properly dismissed the FTCA claims against the Bureau of

     Prisons.

2.          Toledo failed to state a Bivens claim against the defendants. To state a

     Bivens claim under the Eighth Amendment, Toledo must, at minimum, allege

     deliberate indifference to a substantial risk of his serious harm. Farmer v.

     Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994); Wilson v. Seiter, 501

     U.S. 294, 297, 111 S. Ct. 2321, 2323 (1991).. There is no doctrine of respondeat

     superior in Bivens actions. Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir.

     1998). Thus, in order to be held liable, supervisory federal officials, such as those

     named in this suit, must be either be involved personally in the alleged deprivation,

     or must have implemented a policy “so deficient that the policy itself acts as a

     deprivation of constitutional rights.” Id.

            Toledo alleged only that the defendants “knew or should have known” of a

     substantial risk to Toledo’s life based on the fact that Toledo’s father was a police

     superintendent of the Puerto Rico Police Department; and that defendants “knew

     or should have known” that two prisoners wanted to injure or kill Toledo because

     it was “common knowledge” at the prison “from early in the morning of the

     incident.” Toledo alleges neither that the supervisory officials were personally

     involved in the incident, nor that they implemented a constitutionally deficient


                                       2
              policy. At most, the alleged facts suggest a lack of due care, which “simply does

              not approach the sort of abusive government conduct that the Due Process Clause

              was designed to prevent.” Davidson v. Cannon, 474 U.S. 344, 347–48, 106 S. Ct.

              668, 670 (1986) (holding that the negligent failure of prison officials to protect a

              prisoner from another inmate did not amount to an Eighth Amendment violation).

       3.            Toledo never properly moved for leave to amend his complaint. See Local

              Rule 15.1. Thus, the district court did not abuse its discretion in failing to grant

              leave to amend.

The appellees’ motion to dismiss is DISMISSED as moot.

AFFIRMED.




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