     Case: 11-41077       Document: 00512103079         Page: 1     Date Filed: 01/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 7, 2013

                                     No. 11-41077                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



HUMBERTO HINOJOSA,

                                                  Plaintiff–Appellant,
v.

UNITED STATES BUREAU OF PRISONS; WARDEN BASTROP, FEDERAL
CORRECTIONAL INSTITUTE; UNITED STATES OF AMERICA,

                                                  Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:10-CV-63


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Humberto Hinojosa appeals from the district court’s decision to grant
summary judgment to the United States and dismiss the claims against the
Bureau of Prisons (BOP) and Warden Claude Maye, in a suit arising out of
Hinojosa’s contention that he was improperly deprived of his good-time credit,
delaying his release from prison. Hinojosa has also petitioned for a writ of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                     No. 11-41077

mandamus that he says must be granted before we can exercise appellate
jurisdiction over his case. We conclude that the writ is inappropriate but that
the district court lacked subject-matter jurisdiction over the claim against the
United States, so we accordingly modify the dismissal of that claim to dismissal
without prejudice. We affirm as to the claims asserted against the BOP, but we
vacate and remand as to the claims asserted against Maye.
                                           I
       On March 16, 2010, Hinojosa mailed a claim for administrative remedies
to the BOP claiming that he was deprived of 210 days of earned statutory good-
time credit. On March 23, acting pro se, he filed this suit against the BOP and
the warden of Bastrop Federal Correctional Institute, later identified as Claude
Maye, alleging the deprivation was due to the BOP’s “negligence and
irresponsibility,” which also violated his due process rights. The BOP denied his
administrative claim in a letter dated June 1. Hinojosa apparently served the
complaint on the United States Attorney and Attorney General on October 12,
though he later amended the complaint, with the final version filed November
30.
       On January 5, 2011, the United States Attorney moved to substitute the
United States as the sole defendant, as required for a claim under the Federal
Tort Claims Act (FTCA).1 The court granted the motion with respect to the
negligence claim, left the original defendants in the case to defend the due
process violation, and ordered the United States to respond within sixty days of
the January 26 order, or March 28. On that day, the United States filed an
answer while the other defendants moved for dismissal based on sovereign
immunity (for the BOP) and the complaint’s failure to state a claim and qualified




       1
           See 28 U.S.C. § 2679.

                                           2
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                                         No. 11-41077

immunity (for Maye). All parties eventually filed cross-motions for summary
judgment.
       The district court granted the motions to dismiss and granted summary
judgment to the United States. Hinojosa filed a motion to alter and amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e), but the district
court struck the document based on a local rule. Hinojosa then appealed the
judgment, but later asked us to remand, alleging that we lacked jurisdiction
until the district court actually ruled on the Rule 59(e) motion. We denied the
motion to remand, and Hinojosa then filed a petition for a writ of mandamus to
require the district court to adjudicate the Rule 59(e) motion. In this decision,
we address both that petition and the appeal.
                                              II
       As an initial matter, Hinojosa suggests that we lack jurisdiction over his
appeal because the district court never ruled on the Rule 59(e) motion to alter
and amend the judgment.2 There is, however, no such motion pending because
the district court struck the motion based on its local rules. Hinojosa contends
that decision was improper and therefore ineffective, so he petitions this court
for a writ of mandamus to compel the district court to rule on the motion and
thereby cure the claimed jurisdictional defect over this appeal. For us to issue
this extraordinary writ, Hinojosa must show, among other things, that he has
“‘no other adequate means to attain the relief he desires.’”3 If Hinojosa seeks
only to ensure this court has jurisdiction, we need not grant the writ. To the
extent Hinojosa seeks to have the issues raised in the motion considered, his
appellate brief appears to raise the same issues as his motion, so our appellate



      2
          See FED. R. APP. P. 4(a)(4).
      3
        In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (quoting
Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004)).

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                                       No. 11-41077

review should suffice to address his issues with the judgment below. We deny
the petition for writ of mandamus.
                                              III
       There is a jurisdictional defect, however, as to the claims against the
United States. Under the FTCA, no damages action may be instituted against
the United States “unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall have been finally denied by
the agency in writing” or been left undecided for six months.4 “The requirement
of exhaustion of administrative review is a jurisdictional requisite to the filing
of an action under the FTCA”; such jurisdiction must exist at the time of filing.5
As a waiver of sovereign immunity, the FTCA must be strictly construed, and
consequently, claims under it must strictly comply with its terms.6 As a result,
even if the administrative claim has become exhausted since the time of filing
the complaint, the district court should nonetheless dismiss the claim.7
       Hinojosa argues that the United States failed to raise this issue in the
district court, but sovereign immunity is a question of subject-matter
jurisdiction, and “‘every federal appellate court has a special obligation to satisfy
itself not only of its own jurisdiction, but also that of the lower court in a cause
under review.’”8 Hinojosa also attempts to challenge the substitution of the
United States as a party, asserting it was not done in compliance with FTCA


       4
           28 U.S.C. § 2675(a).
       5
         Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981) (citing Molinar v. United
States, 515 F.2d 246 (5th Cir. 1975)).
       6
           Id. at 204.
       7
         Id.; see also McNeil v. United States, 508 U.S. 106, 112-13 (1993); Price v. United
States, 69 F.3d 46, 54 (5th Cir. 1995).
       8
        Price, 69 F.3d at 49 (quoting Mocklin v. Orleans Levee Dist., 877 F.2d 427, 428 n.3 (5th
Cir. 1989)).

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                                           No. 11-41077

requirements, but because he raises this issue for the first time in his reply brief,
we will not consider it.9
       Hinojosa filed his complaint just one week after filing his administrative
claim, before his administrative claim was denied or six months had passed.
Though his administrative claim has since been denied, that has no bearing on
the jurisdictional issue. The district court lacked jurisdiction to grant summary
judgment, so its judgment must be modified to reflect a dismissal without
prejudice.10
                                                IV
       Hinojosa also appeals the dismissal of his claim against Warden Maye
alleging violation of his constitutional right to due process. First, he contends
that the motion to dismiss was untimely because it was not made within the
proper time after service.11 But Hinojosa amended his complaint while never
furnishing proof that he served the amended complaint, preventing the district
court from ascertaining the proper deadline for a response. Further, though
Hinojosa eventually moved for a default judgment, he did not do so until after
the motion to substitute parties had been filed. The district court took that
motion as an indication that the defendants intended to defend the suit, and
therefore it decided not to enter a default judgment.12 The court set a date for
the defendants to respond, and Warden Maye filed his motion by that date, so
the district court did not err in considering the motion to dismiss on the merits.


       9
           United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
       10
            See Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
       11
            See FED. R. CIV. P. 12(a)(2)-(4).
       12
          See Mason & Hanger-Silas Mason Co., Inc. v. Metal Trades Council, 726 F.2d 166,
168 (5th Cir. 1984) (per curiam) (noting that default judgments are generally disfavored and
holding that it was not an abuse of discretion to deny a default judgment sought for delay in
filing answer).

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                                             No. 11-41077

          Second, Hinojosa argues that the district court incorrectly dismissed his
complaint for failure to state a claim. “We review a district court’s grant of a
motion to dismiss for failure to state a claim de novo, ‘accepting all well-pleaded
facts as true and viewing those facts in the light most favorable to the
plaintiff,’”13 though we do not similarly accept legal conclusions.14 “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’”15 The federal-
court pleading standard “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”16
          Hinojosa’s second amended complaint alleges that “the Defendants
through their negligence and irresponsibility” deprived him of some of his good-
time credit without due process. The district court construed this as a Bivens
claim against the warden,17 a determination which Hinojosa has not contested
on appeal. “Because vicarious liability is inapplicable to Bivens . . . suits, the
plaintiff in a suit such as the present one must plead that each
Government-official defendant, through his own individual actions, has violated
the Constitution.”18 Hinojosa’s complaint provides only conclusory allegations
that “the Defendants” denied him his rights, without any factual matter to


          13
        Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quoting True v. Robles,
571 F.3d 412, 417 (5th Cir. 2009)).
          14
         Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
          15
               Id. (quoting Twombly, 550 U.S. at 570).
          16
               Id. (quoting Twombly, 550 U.S. at 555).
          17
               See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
          18
               Iqbal, 556 U.S. at 663 (citation omitted).

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                                           No. 11-41077

support the claim and with no mention of a specific violation by Warden Maye.
As a result, the district court correctly dismissed the claim. However, the
district court dismissed with prejudice. In the current procedural posture of this
case, the district court should not have done so19 because we cannot say based
on this record that there is no possibility that Hinojosa can state a claim. We
note that we do not decide whether a Bivens action may be brought for a federal
official’s denial of due process in connection with the calculation of good-time
credits.20 The parties did not brief in this court whether such a claim is
cognizable and if so, under what circumstances.
       Additionally, we vacate and remand rather than modify the judgment of
dismissal from with prejudice to without prejudice as to Maye because it is not
clear whether dismissal without prejudice would result in barring Hinojosa’s
claim under the statute of limitations.21
       Hinojosa also named the BOP as a defendant, but he conceded before the
district court that sovereign immunity bars that claim. He has asked in his
reply brief to this court that we remand to allow him to name the BOP’s director
as a defendant instead.            As noted earlier, we do not generally consider
arguments raised for the first time in a reply brief. However, we do not reach
this issue because we are vacating and remanding for further proceedings.
                                       *        *         *




       19
            See Moawad v. Childs, 673 F.2d 850, 851 (5th Cir. 1982).
       20
          See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“In 30 years of Bivens
jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent
cause of action against individual officers alleged to have acted unconstitutionally, or to
provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused
by an individual officer’s unconstitutional conduct. Where such circumstances are not present,
we have consistently rejected invitations to extend Bivens . . . .”).

       21
            See Peña v. United States, 157 F.3d 984, 987 (5th Cir. 1998).

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                               No. 11-41077

     For the foregoing reasons, we DENY the petition for a writ of mandamus,
MODIFY the judgment to dismiss without prejudice the claim against the
United States, AFFIRM the dismissal of the claims against the BOP, and
VACATE and REMAND the dismissal of the claim against Maye.




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