DLD-390                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 13-1897
                                  ___________


                              JOSE NAVARRETE,
                                       Appellant

                                        v.

  UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS, Warden;
 FEDERAL CORRECTIONS INSTITUTION; LOUISIANA STATE UNIVERSITY;
   BARNES AND NOBLE BOOK STORE, Owner, Louisiana State University;
                    EDUCATION SUPERVISOR


                   ____________________________________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Civil No. 1-09-cv-03683)
                 District Judge: Honorable Jerome B. Simandle
                  ____________________________________


      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                August 15, 2013
           Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                       (Opinion filed: September 3, 2013)

                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Jose Navarrete, a federal inmate confined at the Federal Correctional Institution at

Fort Dix, New Jersey (FCI-Fort Dix), appeals from an order of the District Court granting

defendant’s motion for summary judgment. Navarrete also appeals the District Court’s

denial of his motion for reconsideration. For the reasons that follow, we will summarily

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       Navarrete commenced this action against the United States of America, the

Federal Bureau of Prisons (“FBOP”), the Warden of FCI-Fort Dix, the Education

Supervisor at FCI-Fort Dix, the President of Louisiana State University (“LSU”), and the

owner of the Barnes & Noble Book Store at LSU.1 He alleged that, while incarcerated,

he enrolled in a correspondence course at LSU, but that the mailroom at FCI-Fort Dix

improperly refused delivery of his course textbooks. As a result, he was unable to

complete the course. In his complaint, Navarrete asserted that defendants violated his

rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments, and unspecified

state laws.

       The District Court dismissed sua sponte for failure to state a claim, all of

Navarrete’s claims except his First and Fifth Amendment claims against the Warden of


1
  Although Navarrete sought relief under 42 U.S.C. § 1983, the District Court construed
his suit as an action under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S.
388 (1971), not § 1983, because it involved federal (and alleged federal) actors rather
than state actors. See Bivens, 403 U.S. at 389 (recognizing a private cause of action to
recover damages against federal actors for constitutional violations).




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FCI-Fort Dix. Following discovery, the District Court granted the Warden’s motion for

summary judgment on Navarrete’s remaining claims. Navarrete filed a motion for

reconsideration, which the District Court denied. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s dismissal for failure to state a claim, as well as its grant of summary judgment, is

plenary. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).

       We determine that the District Court properly dismissed any Bivens claims

against the United States, FBOP, and FCI–Fort Dix.2 See Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 72 (2001) (holding that Bivens claims may only be brought against

individual federal officers, not the United States or its agencies).3 Navarrete’s

constitutional claims against LSU and the Barnes and Noble bookstore, both private

entities, were also properly dismissed. Corr. Servs. Corp., 534 U.S. at 71. Moreover, as

the District Court noted, Barnes and Noble issued Navarrete a refund after the store

received the returned books. We also agree, for the reasons given by the District Court,



2
 We construe Navarrete’s notice of appeal as also challenging the District Court’s earlier
order dismissing some of his claims.
3
  To the extent that the complaint could be construed as attempting to assert a claim under
the Federal Tort Claims Act (“FTCA”), we agree with the District Court that it did not
have subject matter jurisdiction under the FTCA. A claim may not be brought pursuant
to the FTCA unless the plaintiff has first exhausted his administrative remedies. See
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir. 2010) (quoting 28 U.S.C.
§ 2675(a)). This requirement “is jurisdictional and cannot be waived.” Roma v. United
States, 344 F.3d 352, 362 (3d Cir. 2003) (citation omitted). Navarrete does not claim to
have availed himself of, let alone exhausted, available administrative remedies.




                                              3
that Navarrete failed to allege any facts demonstrating the denial of any rights under the

Fourth, Eighth, or Fourteenth Amendments.

       We further conclude that the District Court properly granted the Warden of FCI-

Dix’s motion for summary judgment on Navarrete’s First and Fifth Amendment claims.

Even assuming that the return of Navarrete’s course textbooks violated his First and Fifth

Amendment rights, he did not set forth any evidence upon which a jury could conclude

that the Warden had any personal involvement in that decision, and a Bivens claim

cannot be premised upon a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S.

662, 675-77 (2009); Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60,

71-72 (3d Cir. 2011).

       Finally, the District Court did not abuse its discretion in denying Navarrete’s

motion for reconsideration, as it did not include any of the grounds required for

reconsideration. See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per

curiam) (Rule 59 motion “must rely on one of three grounds: (1) an intervening change in

controlling law; (2) the availability of new evidence; or (3) the need to correct clear error

of law or prevent manifest injustice”).




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