     Case: 16-31074      Document: 00514367366         Page: 1    Date Filed: 02/28/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-31074
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 28, 2018
MARJAN RROKU,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

DAVID C. COLE; HENRY WOODS; JOHN HARTNETT, Assistant Field
Officer Director on behalf of Immigration & Customs Enforcement,

              Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:15-CV-294


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Marjan Rroku appeals the district court’s (1) dismissal of his Bivens
claims against John Hartnett, Immigration and Customs Enforcement (“ICE”)
Assistant Field Officer Director, and David Cole, LaSalle Detention Facility
Warden, for failure to state a claim, and (2) dismissal of his complaint against




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Dr. Henry Woods 1 for failure to timely serve under Federal Rule of Civil
Procedure 4(m). For the reasons explained below, we AFFIRM.
                                       I. Background
          Marjan Rroku is an Albanian citizen currently incarcerated in Albania.
While in the United States, Rroku alleges that he was apprehended for an
immigration violation and eventually detained for 513 days at LaSalle
Detention Facility in Louisiana, an ICE immigration detention facility
operated by a private corporation, GEO Group. Following his time at LaSalle,
Rroku was deported to Albania.
          Rroku alleges that, while at LaSalle, he was placed in administrative
segregation and subjected to “harsh and dangerous conditions,” including cold,
noise, dirt, and nonstop light. He further alleges that, due to the conditions,
and improper medical care, he has a “lifethreatening [sic] and irreversible
heart condition” that he will have “for the rest of [his] life.” Additionally, Rroku
alleges that the special diet he was put on while at LaSalle, consisting of all
liquid food, resulted in irreparable stomach damage.
          On February 11, 2015, Rroku filed a complaint against Hartnett, Cole,
and Dr. Woods stating claims under Bivens 2 and attaching, inter alia, personal
statements and medical records from his time at LaSalle. The magistrate
judge issued a memorandum order stating that the complaint was deficient
and gave Rroku thirty days to file properly and included a form to file a
complaint under 42 U.S.C. § 1983. Rroku subsequently filed an amended




         Although the record on appeal indicates that Dr. Woods’s actual name is Dr. Wood,
          1

that discrepancy is not critical to our analysis. Thus, for the sake of consistency with the
lower court and the case caption, we refer to him as Dr. Woods.
          2   Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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complaint under § 1983. 3 The district court determined that the three initial
summonses issued against the defendants were returned unexecuted. Rroku
then properly served Cole and Hartnett, but the summons was returned
unexecuted as to Dr. Woods. Cole served an answer stating, inter alia, that
the complaint failed to state a claim upon which relief could be granted, and
Hartnett filed a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Rroku responded to each of these. The
magistrate judge issued a report and recommendation (1) dismissing Rroku’s
complaint against Dr. Woods for failure to serve under Federal Rule of Civil
Procedure 4(m), (2) granting Hartnett’s motion to dismiss, and (3) sua sponte
dismissing Rroku’s claims against Cole because he cannot be sued under
Bivens. Rroku objected to the granting of Hartnett’s motion to dismiss and the
dismissal of his claims against Cole. The district court then adopted the report
and recommendation. Rroku timely appealed.
                               II. Standard of Review
       A district court’s dismissal under Rule 12(b)(6) for failure to state a claim
is reviewed de novo. Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260
(5th Cir. 2008). “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.” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d
787, 796 (5th Cir. 2011) (internal quotations omitted) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting



       3 As no defendant is a state actor, the § 1983 claim is construed as a Bivens claim. See
Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005) (“[W]e have held that the constitutional
torts authorized by each [of Bivens and § 1983] are coextensive. . . . Thus, we do not
distinguish [] between Bivens claims and § 1983 claims.” (internal citations omitted)).
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Iqbal, 556 U.S. at 678). We review the complaint in a light most favorable to
the plaintiff. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8
(5th Cir. 2000).
      Normally, “[w]e review a district court’s dismissal under Rule 4(m) for
abuse of discretion.” Newby v. Enron Corp., 284 F. App’x 146, 149 (5th Cir.
2008) (per curiam) (citing Traina v. United States, 911 F.2d 1155, 1157 (5th
Cir. 1990)). However, Rroku did not object to Woods’s dismissal under 4(m) in
the report and recommendation.          Failure to object to a report and
recommendation within 14 days of service “bar[s] that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed
factual findings and legal conclusions accepted by the district court, provided
that the party has been served with notice that such consequences will result
from a failure to object.” Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc) (footnotes omitted), superseded on other
grounds by 28 U.S.C. § 636(b)(1). Rroku received such notice here. Therefore,
we review the dismissal under 4(m) for plain error.
                               III. Discussion
   A. Hartnett
      Rroku first argues that the district court erred in granting Hartnett’s
motion to dismiss under Rule 12(b)(6). A Bivens claim provides an implied
damages remedy “to compensate persons injured by federal officers” even
absent statutory authorization. Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017).
Hartnett is undisputedly a federal officer. However, the magistrate judge
determined that Rroku sought to hold Hartnett liable as a supervisor, and
because there is no respondeat superior liability in a Bivens suit, Rroku had
not plead sufficient facts for a Bivens claim against Hartnett.
      Hartnett was the ICE Field Director at the ICE-owned (but GEO Group
operated) LaSalle Detention Facility. That fact, alone, is not enough to hold

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Hartnett liable for Rroku’s harm because, as the magistrate judge correctly
stated, supervisor liability under respondeat superior is not available in a
Bivens suit. Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998). Thus,
Hartnett can only be subject to a potential Bivens suit if: (1) he was personally
involved “in the acts causing the deprivation of [Rroku’s] constitutional rights,”
or (2) “if he implement[ed] a policy so deficient that the policy itself acts as a
deprivation of constitutional rights.” Id.
      With respect to personal involvement, Rroku never explicitly named
Hartnett as an actor in his amended complaint. Thus, the amended complaint
does not implicate Hartnett as personally participating in causing Rroku’s
harm apart from his supervisory role. To the extent that Rroku contends that
Hartnett was involved in any of the alleged conduct against him, his
contentions are “‘naked assertion[s]’ devoid of ‘further factual enhancement,’”
which are not sufficient to overcome a 12(b)(6) motion. Iqbal, 556 U.S. at 678
(alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)).
      With respect to implementing a policy, Rroku has not identified an ICE
policy implemented by Hartnett at LaSalle which deprived the detainees, like
Rroku, of constitutional rights. Thus, Rroku has alleged neither a plausible
deficient policy nor personal involvement by Hartnett beyond his role as
supervisor so as to overcome a 12(b)(6) motion.
   B. Cole
      Rroku next argues that the district court erred in dismissing his claims
against Cole for failure to state a claim. In reviewing the claims against Cole,
the magistrate judge cited to Minneci v. Pollard, 565 U.S. 118 (2012), for the
proposition that:
             Where a federal prisoner seeks damages from
             privately-employed personnel working at a privately-
             operated federal prison, and where the conduct
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              allegedly amounts to a violation of the Eighth
              Amendment and is of a kind that typically falls within
              the scope of traditional state tort law . . . , the prisoner
              must seek a remedy under state tort law. Courts
              cannot imply a Bivens remedy in such a case.
Because Rroku’s claims that his conditions of confinement and lack of medical
care fell under traditional Louisiana state tort law, the magistrate judge
dismissed the claims against Cole.
        Rroku concedes that Cole is employed by GEO Group, the private
corporation which operates LaSalle, and thus is not a “federal officer” for the
purposes of a Bivens claim. See Abbasi, 137 S. Ct. at 1854. Nonetheless, he
contends that a Bivens claim should extend to Cole because Cole works with
the federal ICE officials, according to ICE guidelines, and with federal
prisoners.
        The first question in analyzing a claim that a federal right was violated
is whether that claimed right is a protectable interest. Rroku first alleges that
his continued placement in administrative segregation, rather than the
general population, violated his constitutional rights.            In fact, “‘absent
extraordinary circumstances,’ administrative segregation that is merely
‘incident to the ordinary life as a prisoner’ is not grounds for a constitutional
claim, because it simply ‘does not constitute a deprivation of a constitutionally
cognizable liberty interest.’” Wilkerson v. Goodwin, 774 F.3d 845, 853 (5th Cir.
2014) (quoting Pichardo v. Kinker, 73 F.3d 612, 612–13 (5th Cir. 1996)). The
restriction must be an “‘atypical and significant hardship . . . in relation to the
ordinary incidents of prison life,’ such that a liberty interest in avoiding the
deprivation arises.” Id. (alteration in original) (quoting Wilkinson v. Austin,
545 U.S. 209, 213 (2005)). Here, Rroku separates his “unlawful segregation”
claim     from     his    inadequate      conditions     of    confinement     claim.
“[A]dministrative segregation, without more, does not constitute a deprivation

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of a constitutionally cognizable liberty interest.” Luken v. Scott, 71 F.3d 192,
193 (5th Cir. 1995) (per curiam). Because Rroku’s unlawful segregation based
upon being placed in administrative segregation rather than the general
population does not include anything “more,” it is not a protectable liberty
interest such that a Bivens remedy could conceivably apply.
       Rroku next alleges that his conditions of confinement while in
administrative segregation were inadequate. We have said in a situation
involving an inmate who was segregated from the general population, “[i]n
deciding whether . . . an inmate’s conditions of confinement implicate a
cognizable liberty interest, [the Supreme Court has] considered the nature of
the more-restrictive confinement and its duration in relation to prison norms
and to the terms of the individual's sentence.” Wilkerson, 774 F.3d at 853 (5th
Cir. 2014) (quoting Harden–Bey v. Rutter, 524 F.3d 789, 792 (6th Cir. 2008)).
Here, Rroku, who claims he should have been held in the general population,
was held in administrative segregation for his entire time at LaSalle and has
identified conditions of confinement that may have been undesirable.
However, he has not provided evidence of detention norms with respect to the
general population of detaineees to which his conditions of confinement can be
compared. In other words, how did his administrative segregation conditions
compare to the general population where he claims he should have been
housed? Without that information, we cannot say that Rroku had a cognizable
liberty interest with respect to his conditions of confinement so there could be
no remedy under Bivens.
       Rroku’s third claim is for neglect in medical care.           4   The first step in
considering a Bivens claim is if the claim represents a new context. Butts v.



       4In his deficient complaint and appellate briefing, Rroku also states a claim for lack
of access to courts due to an inability to access the law library while in administrative
segregation, harming him in then-ongoing immigration court proceedings. However, because
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Martin, 877 F.3d 571, 587 (5th Cir. 2017). A Bivens remedy has only previously
been extended to three scenarios: (1) the Fourth Amendment prohibition
against unreasonable searches and seizures, (2) the Fifth Amendment Due
Process Clause for gender discrimination, and (3) the Eighth Amendment
Cruel and Unusual Punishments Clause for failure to provide adequate
medical treatment. Abbasi, 137 S. Ct. at 1854–55. The Court has consistently
declined to extend Bivens claims to other factual scenarios. Id. at 1857.
       “We consider a person detained for deportation to be the equivalent of a
pretrial detainee; a pretrial detainee’s constitutional claims are considered
under the due process clause instead of the Eighth Amendment.” Edwards v.
Johnson, 209 F.3d 772, 778 (5th Cir. 2000). Thus, because, Rroku was detained
prior to his being deported, his constitutional claim implicates the Fifth
Amendment instead of the Eighth Amendment. 5                    See id.; see also Doe v.
Robertson, 751 F.3d 383, 387 (5th Cir. 2014).
       Arguably, this case presents a similar situation to Pollard, where the
Court refused to extend a Bivens remedy to a federal prisoner claiming a
violation of his Eighth Amendment rights while confined in a privately
operated federal prison. Pollard, 565 U.S. at 120. The Court reasoned that an
“Eighth Amendment claim focuses upon a kind of conduct that typically falls
within the scope of traditional state tort law. And in the case of a privately
employed defendant, state tort law provides an ‘alternative, existing process’
capable of protecting the constitutional interests at stake.” Id. at 125 (quoting



this issue does not appear in the amended complaint, we do not review its propriety. See
Gomez v. LSI Integrated LP, 246 F. App’x 852, 854 & n.6 (5th Cir. 2007) (per curiam)
(“[C]laims not raised in the complaint [are] beyond the scope of the appeal.” (citing Wilson v.
First Hous. Inv. Corp., 566 F.2d 1235, 1243 (5th Cir. 1978), vacated on other grounds, 444
U.S. 959 (1979))).
       5  “A prison that deprives prisoners of basic sustenance, including adequate
medical care, is incompatible with the concept of human dignity” and constitutes a violation
of federal constitutional rights. Brown v. Plata, 563 U.S. 493, 511 (2011).
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Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). Therefore, “[t]he existence of that
alternative here constitutes a ‘convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in damages.’” Id. at
125–26 (quoting Wilkie, 551 U.S. at 550). The scenario here is slightly different
than Pollard—Rroku’s claim is under the Fifth, rather than the Eighth,
Amendment. The Court has cautioned that markedly similar claims brought
under different amendments should not automatically be considered
analogous. See Abbasi, 137 S. Ct. at 1864. Thus, Pollard does not expressly
bar Rroku’s claim, arguably making this a new context.
      Because the constitutional rights Rroku claims were violated present a
new Bivens context, we turn to the limitations on Bivens. We will not create a
new Bivens remedy (1) “if there are ‘special factors counselling hesitation in
the absence of affirmative action by Congress’” or (2) “where an ‘alternative,
existing process for protecting the interest amounts to a convincing reason for
the Judicial Branch to refrain from providing a new and freestanding remedy
in damages.’” Butts, 877 F.3d at 587–88 (quoting Abbasi, 137 S.Ct. at 1857,
and Wilkie, 551 U.S. at 550).
      As discussed with respect to Pollard, a state tort law claim can qualify
as a convincing reason to refrain from creating a Bivens right and remedy. See
565 U.S. at 120. Rroku does not claim that there is a lack of alternative
remedies as to his neglect in medical care claim; thus, that argument is
waived. 6 See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008). His
argument that limitations has run on his state claims suggests there may be a
defense to the particular claim here not that state tort law does not provide a
remedy for this type of situation. “[T]he Court has made clear that expanding


      6 Rroku has alleged that a state court claim does not offer an alternative remedy to
Bivens with respect to his access to courts claim. As explained above, that claim is not
reviewable here. See supra note 4.
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the Bivens remedy is now a ‘disfavored’ judicial activity.” Abbasi, 137 S. Ct. at
1857 (citing Iqbal, 556 U.S. at 675). Accordingly, under the circumstances
here, we decline to extend Bivens to allow a federal claim against Cole.
   C. Dr. Woods
      Rroku argues that the district court erred in dismissing his complaint
against Dr. Woods under Rule 4(m) for failure to serve. In October 2015, when
Rroku attempted service on Dr. Woods, Rule 4(m) dictated: “If a defendant is
not served within 120 days after the complaint is filed, the court—on motion
or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a
specified time.” FED R. CIV. P. 4(m) (2014). 7 There is a caveat to dismissal,
being that “if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.” Id.
      To succeed under plain error review, Rroku must first show “(1) an error;
(2) that is plain or obvious.” Quinn v. Guerrero, 863 F.3d 353, 358 (5th Cir.
2017) (citing United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir.
2012) (en banc)), cert. denied, 138 S. Ct. 682 (2018). On appeal, Rroku argues
that (1) he was unable to serve Dr. Woods because Dr. Woods no longer worked
at LaSalle, and (2) because Assistant United States Attorney Cristina Walker
is representing all of the Appellees, we should consider the claims against Dr.
Woods as well.
      With respect to his first argument, Rroku did indicate to the district
court that he was unable to locate Dr. Woods. However, he has not argued that
he has attempted to locate Dr. Woods at any time after the second summons



      7  The Federal Rules of Civil Procedure were amended on April 29, 2015, to change the
time for service of a defendant from 120 days to 90 days; however, those amendments did not
become effective until December 1, 2015. See Order of the Supreme Court of the United
States, 305 F.R.D. 457, 460 (April 29, 2015).
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was returned unexecuted.       Good faith requires a “reasonable basis for
noncompliance within the time specified.” Lambert v. United States, 44 F.3d
296, 299 (5th Cir. 1995) (quoting Winters v. Teledyne Movible Offshore,
Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). As Rroku has not claimed any
attempt to locate Dr. Woods, it was not obvious that the district court should
have found good cause in this scenario.
      With respect to Rroku’s argument that Ms. Walker represents all
appellees, that is simply not that case; she represents only Hartnett. Because
Rroku has not identified any clear error in the district court opinion, he fails
to overcome plain error review. See Escalante-Reyes, 689 F.3d at 419.
      For the foregoing reasons, we AFFIRM the dismissal of Rroku’s claims
against Hartnett, Cole, and Dr. Woods. Rroku’s request for appointment of
counsel is DENIED.




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