           Case: 12-12253   Date Filed: 02/22/2013   Page: 1 of 6

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12253
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:09-cv-00396-JES-DNF



DALE J. TOPPING,

                                                           Plaintiff-Appellant,

                                versus

UNITED STATES DEPARTMENT OF EDUCATION,
MICHIGAN HIGHER EDUCATION AUTHORITY,
JAKE LEONARD,
JACQUENETTE THOMPSON,
SECRETARY OF EDUCATION,
et al.,

                                                        Defendants-Appellees.

                      ________________________

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

                            (February 22, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 12-12253       Date Filed: 02/22/2013      Page: 2 of 6

       Dale Topping, proceeding pro se, appeals the district court’s grant of the

defendants’ motions to dismiss for failure to state a claim on which relief can be

granted his claims brought under Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. In his complaint,

Topping alleged that the defendants had violated his due process rights by taking

various actions to collect a student loan dated from February 1982. He claimed

that he had disputed the validity of this debt, but the defendants continued their

collection efforts without sufficiently resolving his grievance as to the underlying

loan. The district court dismissed some of his claims with prejudice (as time

barred and because Topping improperly attempted to sue federal and state agencies

under Bivens and § 1983, respectively) and others without prejudice (because

Topping had not pleaded sufficient facts to overcome a motion to dismiss). 1 On

appeal, Topping argues that: (1) the district court improperly dismissed his claims,

in part, because no statute of limitations should apply to them; and (2) he alleged

facts sufficient to set out a claim that his constitutional rights were violated. After

careful review, we affirm.

       We review de novo the district court’s grant of a motion to dismiss. Randall

v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). We may, nevertheless, affirm the

district court’s judgment on any ground that finds support in the record. Lucas v.

1
 The district court also dismissed Jake Leonard at Topping’s insistence; Topping does not
challenge this on appeal.
                                               2
              Case: 12-12253     Date Filed: 02/22/2013    Page: 3 of 6

W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). Under Federal Rule

of Civil Procedure 8, a complaint must contain “a short and plain statement of the

claim showing that the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face’” in order to survive a motion to dismiss for

failure to state a claim on which relief can be granted under Fed.R.Civ.P. 12(b)(6).

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly,

550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, we accept as true all

factual allegations contained in the complaint, but we are “not bound to accept as

true a legal conclusion couched as a factual allegation.” Id. at 678 (quotation

omitted). Threadbare recitations of the elements of a cause of action, supported

only by conclusory statements, do not suffice. Id. Pleadings filed by a pro se

litigant are construed liberally, but pro se litigants must nonetheless conform to

procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

      Section 1983 of Title 42 of the United States Code provides civil liability for

any person who, while acting under color of state law, deprives a citizen or other

person within the jurisdiction of the United States of any federal right, privilege, or

immunity. Section 1983, however, is not a source of substantive federal rights.

Almand v. DeKalb County, Georgia, 103 F.3d 1510, 1512 (11th Cir. 1997).

Claims brought under Bivens are similar to § 1983 claims, because Bivens


                                          3
              Case: 12-12253     Date Filed: 02/22/2013   Page: 4 of 6

essentially created a remedy against federal officers, acting under color of federal

law. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). Therefore, courts

generally apply § 1983 law in Bivens cases. Id. Under Bivens and § 1983, a

plaintiff may bring a cause of action against an officer acting in his or her

individual capacity, but not against a federal or state government agency. FDIC v.

Meyer, 510 U.S. 471, 484-86 (1994); Will v. Mich. Dep’t of State Police, 491 U.S.

58, 70-71 (1989). Under Bivens, a government official may not be held liable for

the conduct of his subordinates on a theory of respondeat superior; rather, the

plaintiff must plead that each government official defendant violated the

Constitution through his own individual actions. Iqbal, 556 U.S. at 676.

      In § 1983 actions, federal courts apply the forum state’s residual statute of

limitations for personal injury actions. Burton v. City of Belle Glade, 178 F.3d

1175, 1188 (11th Cir. 1999). Therefore, we have explained, “a plaintiff must

commence a § 1983 claim arising in Florida within four years of the allegedly

unconstitutional or otherwise illegal act.” Id. The Supreme Court has explicitly

rejected the practice of selecting the state statute of limitations most analogous or

most appropriate to a particular § 1983 claim. Owens v. Okure, 488 U.S. 235, 248-

50 (1989). In Bivens actions, we apply the same statute of limitations as would

apply in a § 1983 action. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). In

general, the statute of limitations does not begin to run until the facts supporting a


                                          4
                Case: 12-12253   Date Filed: 02/22/2013   Page: 5 of 6

cause of action are apparent or should be apparent to a person with reasonably

prudent regard for his rights. Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003).

      The Supreme Court has allowed Bivens actions that involved the Fifth

Amendment’s Due Process Clause. See Davis v. Passman, 442 U.S. 228, 243-44

(1979). In Davis, the Supreme Court inferred a new right of action “chiefly

because the plaintiff lacked any other remedy for the alleged constitutional

deprivation.”    Correctional Srvs. Corp. v. Malesko, 534 U.S. 61, 67 (2001).

Damages may be obtained in a Bivens action when (1) a plaintiff has no alternative

means of obtaining redress and (2) no special factors that counsel hesitation are

present. Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004). In Miller v.

U.S. Department of Agriculture Farm Services Agency, we held that a former

employee of the Department of Agriculture could not sue for money damages for

wrongful termination under Bivens where he had a right to judicial review under

the Administrative Procedures Act. 143 F.3d 1413, 1416-17 (11th Cir. 1998).

      The district court did not err in dismissing Topping’s claims. To begin with,

Topping provided only vague and conclusory allegations of a § 1983 conspiracy,

but alleged no facts making the existence of such a conspiracy plausible on its face.

Further, because the U.S. Department of Education is a federal agency and the

Michigan Higher Education Assistance Authority is a state agency, they cannot be

sued under Bivens and § 1983, respectively.        As for Jacquenette Thompson,


                                         5
                 Case: 12-12253       Date Filed: 02/22/2013       Page: 6 of 6

Topping made only conclusory assertions that Thompson violated his rights.

Topping attempted to hold Arne Duncan and Michael Flanagan liable under a

theory of respondeat superior, but Topping alleged no specifically illegal or

unconstitutional conduct of theirs in his case. Moreover, the statute of limitations

barred Toppings’ claims against Diane Spadoni, Harold Hightower, and Karen

Papoi -- and Topping has offered nothing in the face of clear precedent of this

Court and the Supreme Court establishing that a four-year statute of limitations

applies to his claims. Accordingly, we affirm the district court’s dismissal of

Topping’s complaint. 2

       AFFIRMED.




2
        Additionally, the district court properly dismissed Topping’s claims to the extent that he
purportedly brought them under the Federal Tort Claims Act (“FTCA”), because Topping had
not alleged that he had exhausted the appropriate administrative remedies. See Dalrymple v.
United States, 460 F.3d 1318, 1324 (11th Cir. 2006) (noting that a federal court does not have
jurisdiction under the FTCA unless the plaintiff first files an administrative claim with the
appropriate agency). Topping has effectively acknowledged on appeal that his claims could not
be asserted under the FTCA as of the date when he pursued his complaint because he has filed a
parallel FTCA administrative claim.

        Also, in his reply brief, Topping has raised the new argument that certain amendments to
the Higher Education Act constituted impermissible age discrimination. Because he raises this
argument for the first time in his reply brief, he abandoned it. See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (observing that a pro se litigant abandons any argument not addressed
in his opening brief).
                                                 6
