               Case: 18-10655     Date Filed: 03/04/2019   Page: 1 of 5


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 18-10655
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 2:17-cv-00350-WKW-DAB


DARRELL LAMAR MARSHALL,

                                                                  Plaintiff-Appellant,

                                        versus

UNITED STATES OF AMERICA,
W. HAROLD ALBRITTON, III,
United States District Judge, in his official capacity,
MYRON H. THOMPSON,
United States District Judge, in his official capacity,
U.S. ATTORNEY'S OFFICE,
in their official capacity,
THE FEDERAL MEDICAL CENTER,
in their official capacity,

                                                              Defendants-Appellees.
                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Alabama
                          ________________________

                                   (March 4, 2019)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Darrell Marshall appeals pro se the sua sponte dismissal of his complaint. 28

U.S.C. § 1915(e)(2)(B). Marshall challenges the denial of his motion for the

magistrate judge to recuse and the treatment of his action as raising constitutional

claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Marshall also argues that the summary disposition

of his complaint violated his right to due process. We affirm.

      The district court did not abuse its discretion when it denied Marshall’s

motion to recuse. Marshall alleged that the magistrate judge was “bias[ed],” but

Marshall failed to file an affidavit stating that the magistrate judge was prejudiced

against him or that the magistrate judge possessed personal knowledge of the case

that required recusal. See 28 U.S.C. § 144. Marshall’s status as a pro se litigant did

not excuse him from providing an affidavit in support of his motion. See Albra v.

Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). Marshall also alleged that the

magistrate judge engaged in “misconduct . . . [by] misconstru[ing] [the] Civil

Rights Complaint as a Bivens action and recommend[ing] that the case be

dismissed,” but Marshall’s disagreement with the magistrate judge’s adverse




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rulings did not constitute a valid ground for recusal. See Draper v. Reynolds, 369

F.3d 1270, 1279 (11th Cir. 2004).

      The district court reasonably construed Marshall’s complaint as a Bivens

action. Civil actions against state officers for violating a plaintiff’s federal

constitutional rights are governed by a federal statute, 42 U.S.C. § 1983, while

Bivens recognizes a cause of action against federal officers for violations of federal

constitutional rights. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).

Marshall did not allege that any defendant violated his federal constitutional rights

while acting under color of state law as required to state a claim under section

1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). As the

district court stated, Bivens offered Marshall his “best hope for relief” because he

alleged wrongdoing by federal actors. Marshall complained that two federal district

judges, the United States Attorney’s Office, the Federal Medical Center, and the

United States of America conspired to conceal his mental disabilities,

discriminated against him because of his mental disability, and violated the

Americans With Disabilities Act.

      The district court did not abuse its discretion by dismissing Marshall’s

complaint as frivolous. When an “action . . . is frivolous,” 28 U.S.C.

§ 1915(e)(2)(B)(i), by being “without arguable merit either in law or fact,” Napier


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v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d

1346, 1349 (11th Cir. 2001)), the district court must dismiss the action and may do

so sua sponte before service of process, Vanderberg v. Donaldson, 259 F.3d 1321,

1323 (11th Cir. 2001). Marshall’s complaint is frivolous because the district judges

enjoy absolute judicial immunity, see Bolin v. Story, 225 F.3d 1234, 1239 (11th

Cir. 2000), and because Bivens does not provide for an action against federal

agencies like the United States Attorney’s Office and the Federal Medical Center,

Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 486 (1994), or against the United

States, McCollum v. Bolger, 794 F.2d 602, 608 (11th Cir. 1986), all of which enjoy

sovereign immunity. Marshall does not challenge the dismissal of his claim under

the Disabilities Act, so we deem abandoned any argument he could have made

contesting that adverse ruling. See Timson v. Sampson, 518 F.3d 870, 874 (11th

Cir. 2008) (“While we read briefs filed by pro se litigants liberally, issues not

briefed on appeal by a pro se litigant are deemed abandoned . . . .”).

      The district court did not violate Marshall’s right to due process by sua

sponte dismissing his complaint. “[D]ue process requires, at a minimum, that . . .

persons forced to settle their claims of right and duty through the judicial process

must be given a meaningful opportunity to be heard.” Boddie v. Connecticut, 401

U.S. 371, 377 (1971). The screening procedure under which the district court


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dismissed Marshall’s complaint as frivolous, 28 U.S.C. § 1915(e)(2)(B)(ii), does

not violate due process. See Vanderberg, 259 F.3d at 1323. The district court

reviewed Marshall’s objections to the recommendation of the magistrate judge

before entering its final order that dismissed the complaint. See Link v. Wabash

R.R. Co., 370 U.S. 626, 632 (1962) (sua sponte dismissal for failure to prosecute

did not “offend[ ] due process” given “the availability of a corrective remedy”).

And we have reviewed the dismissal of Marshall’s complaint de novo. These

postdecisional procedures provided Marshall ample “meaningful opportunit[ies] to

be heard.” See Boddie, 401 U.S. at 377.

      We AFFIRM the dismissal of Marshall’s complaint.




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