                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-14228                ELEVENTH CIRCUIT
                                                              JAN 09, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 08-20009-CV-PAS

M.D. DOUGLAS E. NALLS,
Sui Juris,

                                                           Plaintiff-Appellant,

                                   versus

COLEMAN LOW FEDERAL INSTITUTION,
Unknown Correctional Officer, Unknown Medical
Officers, Warden and Administrative Personnel,
BUREAU OF PRISONS,


                                                        Defendants-Appellees.

                        ________________________

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

                             (January 9, 2009)

Before ANDERSON, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
      Douglas E. Nalls, M.D., proceeding pro se, appeals the district court’s order

granting the defendants’ motion for summary judgment and denying his motion

for summary judgment as to his Bivens1 action. On appeal, Nalls raises two issues:

(1) the district court was not authorized to convert the defendants’ motion to

dismiss into a motion for summary judgment, and (2) the district court erred by

granting summary judgment to the defendants on Nalls’s Bivens claim for lack of

subject matter jurisdiction. We address each issue in turn. After review, we

affirm in part and reverse and remand in part.2

                                                   I.

      Nalls contends the district court erred by converting the defendants’ motion

to dismiss into a motion for summary judgment based on Federal Tort Claims Act

(FTCA) claim forms attached to the defendants’ motion to dismiss. Nalls argues

he filed a Bivens action, not a FTCA claim, and thus the extrinsic evidence was

irrelevant and should not have been considered.




      1
          Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 91 S. Ct. 1999 (1971).
      2
          We also grant Nalls’s motion for leave to file reply brief out of time.

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      When matters outside the pleadings are presented to and not excluded by the

district court in a Federal Rule of Civil Procedure 12(b)(6) motion, the motion

must be treated as one for summary judgment under Rule 56, and all parties must

be given a reasonable opportunity to present all the material that is pertinent to the

motion. Fed. R. Civ. P. 12(d).

      The defendants attached three exhibits to their motion to dismiss, and, as a

result, the district court was authorized to convert the defendants’ motion to

dismiss into a motion for summary judgment.

                                           II.

      Nalls next argues the district court erred by granting summary judgment to

the defendants on his Bivens action for lack of subject matter jurisdiction. The

district court dismissed the Bivens claims against the United States and the Bureau

of Prisons based on sovereign immunity. It also dismissed the Bivens claims

against an unknown correctional officer, unknown medical officers, and the

warden and administrative personnel of Coleman Low Federal Institution,

concluding Nalls’s complaint gave no indication of his intention to sue these

defendants in their individual capacities and Bivens claims were not applicable to

federal officers sued in their official capacities.




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      Nalls contends the district court held him, as a pro se plaintiff, to the

standard of a bar licensed attorney and erred by failing to instruct him on how to

amend his pleadings to state a claim upon which relief may be granted. He

maintains the government cannot assert sovereign immunity as a defense to a

Bivens action, because sovereign immunity was not at issue in Bivens, and his

factual allegations sufficiently show a violation of his constitutional rights

authorizing the district court to address his complaint.

      We review de novo a district court’s grant of summary judgment. Skop v.

City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment is

appropriate when “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In

making this determination, we ‘view the evidence and all factual inferences

therefrom in the light most favorable to the non-moving party, and resolve all

reasonable doubts about the facts in favor of the non-movant.’” Skop, 485 F.3d at

1136 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004)).

      The availability of a cause of action against federal officials in their

individual capacities for violations of federal constitutional rights was established

in Bivens, 91 S. Ct. at 2004–05. Bivens claims can be brought against federal

officers in their individual capacities only; they do not apply to federal officers

                                           4
acting in their official capacities. See Corr. Servs. Corp. v. Malesko, 122 S. Ct.

515, 521–22 (2001). Moreover, Bivens does not extend to allow causes of action

against federal agencies. F.D.I.C. v. Meyer, 114 S. Ct. 996, 1005–06 (1994).

      “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “a pro se litigant does not

escape the essential burden under summary judgment standards of establishing

that there is a genuine issue as to a fact material to his case in order to avert

summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).

Although we show leniency to pro se litigants, we will not serve as de facto

counsel or “rewrite an otherwise deficient pleading in order to sustain an action.”

GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).

      As an initial matter, the district court lacked subject matter jurisdiction over

Nalls’s claims against the Bureau of Prisons because Bivens does not extend to

federal agencies, see Meyer, 114 S. Ct. at 1005–06, and against the United States

because it is “immune to suit,” see Bivens, 91 S. Ct. at 2012 (Harlan, J., concurring

in the judgment). Accordingly, the district court did not err by granting summary

judgment to the Bureau of Prisons and the United States.




                                            5
      The district court, however, erroneously granted summary judgment to the

individual defendants because they are not entitled to sovereign immunity. Nalls

never asserted in his complaint whether he brought his claims against federal

officials in their official capacities. The district court thus failed to liberally

construe Nalls’s complaint in his favor when it read the complaint to be a Bivens

action against federal officials in their official capacities. If the district court had

liberally construed Nalls’s complaint, it would have found his claims to be against

the individual defendants in their individual capacities to conform to his Bivens

claim. See Tannenbaum, 148 F.3d at 1263. Accordingly, the district court had

subject matter jurisdiction over Nalls’s claims against the unknown correctional

officer, the unknown medical officers, and the warden and administrative

personnel.

      Because sovereign immunity applies to the Bureau of Prisons, as a federal

agency, and to the United States, we affirm the district court’s grant of summary

judgment in favor of those parties. The district court, however, erred by granting

summary judgment to the unknown correctional officer, the unknown medical

officers, and the warden and administrative personnel because the court failed to

liberally construe Nalls’s complaint to be against the federal officers in their




                                            6
individual capacities. Accordingly, we reverse the district court’s grant of

summary judgment in favor of the individual defendants.

      AFFIRMED in part; REVERSED and REMANDED in part.




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