                                                        [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-10936                ELEVENTH CIRCUIT
                                                        NOVEMBER 30, 2009
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                  D. C. Docket No. 08-21670-CV-MGC

RYAN JOSEPH,



                                                        Petitioner-Appellant,

                                 versus

FCI MIAMI,
Jorge Pastrana (Warden),
FEDERAL BUREAU OF PRISONS,
Harley G. Lappin,
RONALD HOLT,
UNITED STATES OF AMERICA,


                                                     Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                          (November 30, 2009)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Ryan Joseph, a federal prisoner proceeding pro se, filed a habeas corpus

petition and amended complaint alleging violations of his Eighth Amendment

rights and naming as defendants the United States, the Federal Bureau of Prisons,

and several individuals: Jose Pastrana, Harley Lappin, and Ronald Holt.1 The

district court construed his petition as a Bivens action,2 and Joseph later filed an

amended complaint bringing additional claims under the Federal Tort Claims Act,

28 U.S.C. § 2674, and the Administrative Procedure Act, 5 U.S.C. § 702. The

district court dismissed Joseph’s complaint for failure to state a claim, 28 U.S.C.

§ 1915(e)(2)(B)(ii), and he now appeals the court’s dismissal of his Eighth

Amendment claims.3

         We review § 1915(e)(2)(B)(ii) dismissals de novo, viewing the allegations

in the complaint as true. Douglas v. Yates, 535 F.3d 1316, 1319–20 (11th Cir.

2008). The United States and its agencies are not proper defendants in a Bivens



1
    Joseph apparently intended to sue Raymond Holt, the Bureau of Prisons’ Regional Director.
2
    Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
3
  In his brief, Joseph does not challenge the dismissal of his FTCA and APA claims; he has
therefore abandoned those issues on appeal. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th
Cir. 1998).

                                                 2
action. FDIC v. Meyer, 510 U.S. 471, 484–86 (1994); McCollum v. Bolger, 794

F.2d 602, 608 (11th Cir. 1986). Accordingly, the district court’s dismissal of

Joseph’s Eighth Amendment claims against the United States and the Bureau of

Prisons was not in error, and we affirm this portion of the court’s order.

      With respect to the individual defendants, Joseph never properly served

them with process. See Fed. R. Civ. P. 4. Consequently, the district court’s

discussion of the merits of Joseph’s claims against them was unnecessary.

Whereas a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) is

ordinarily with prejudice, cf. Yates, 535 F.3d at 1320–22, a dismissal for

insufficient service of process is without prejudice, Fed. R. Civ. P. 4(m). We

therefore vacate the dismissal of Joseph’s claims against the individual defendants

under § 1915(e)(2)(B)(ii) and remand with instructions to dismiss them without

prejudice under Federal Rule of Civil Procedure 4(m).

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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