                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________            FILED
                                               U.S. COURT OF APPEALS
                            No. 09-13557         ELEVENTH CIRCUIT
                                                     APRIL 14, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                        CLERK

                  D. C. Docket No. 07-21751-CV-WMH

KELLY JONES,


                                                          Plaintiff-Appellant,

                                 versus

JORGE LUIS,
FEDERAL BUREAU OF PRISONS,
UNITED STATES OF AMERICA,
UNKNOWN,


                                                       Defendants-Appellees.


                      ________________________

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

                             (April 14, 2010)

Before EDMONDSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:

      Kelly Jones, a federal prisoner proceeding pro se, appeals (1) the dismissal

of his civil rights complaint for failure to state a claim upon which relief could be

granted under 28 U.S.C. § 1915(e)(2)(B)(ii), and (2) the dismissal of his motion to

strike the magistrate judge’s supplemental Report and Recommendations (“R&R”)

and motion to recuse the magistrate judge. After review of Jones’s brief and the

record, we affirm the district court’s denial of his motions and dismissal of his

complaint.

      Jones filed a complaint against three defendants: Federal Detention Center-

Miami Psychologist Jorge Luis, the Federal Bureau of Prisons (“BOP”), and

John/Jane Doe. During a prior criminal trial, the court ordered Jones to participate

in a psychological examination under 18 U.S.C. § 4241, in order to determine

whether he was competent to withdraw from his motion to withdraw his guilty

plea. Luis was assigned to conduct the evaluation, and determined that Jones was

competent. Jones alleged in his amended complaint that Luis failed to consider

numerous psychological records that Jones’s attorney had sent to Luis, but were

never received by Luis. Jones also alleged that Luis’s report was filled with

“fraudulent misrepresentations, prejudicial comments, unsupported assumptions,

untrue statements, and false claims.” Jones then stated that Luis gave fraudulent



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testimony at Jones’s sentencing hearing regarding his psychological character.

I. Recusal Motion

      We review the denial of a motion for recusal for abuse of discretion. United

States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (per curiam) (citation

omitted). A district judge or magistrate judge must recuse himself “in any

proceeding in which his impartiality might reasonably be questioned,” or “[w]here

he has a personal bias or prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).

The standard of review for a § 455 motion “is whether an objective, disinterested,

lay observer fully informed of the facts underlying the grounds on which recusal

was sought would entertain a significant doubt about the judge’s impartiality.”

United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citation and quotation

omitted).

      The magistrate judge, in a supplemental R&R, expounded on the details of

Jones’s criminal case to better shed light on the reasons his complaint failed to

state a claim for relief. Jones argues that the magistrate judge showed his “bias and

apparent anger” in providing this additional information to assist the defendants.

Appellant Br. 13. Usually, bias sufficient to disqualify a judge must stem from an

extrajudicial source, except “when a judge’s remarks in a judicial context



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demonstrate such pervasive bias and prejudice that it constitutes bias against a

party.” Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002)

(per curiam) (citation and quotation omitted). “[J]udicial rulings alone almost

never constitute a valid basis for a bias or partiality motion.” Draper v. Reynolds,

369 F.3d 1270, 1279 (11th Cir. 2004) (quoting Liteky v. United States, 510 U.S.

540, 555, 114 S. Ct. 1147, 1157 (1994)). The bias must be personal, rather than

judicial in nature. Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per

curiam) (citation omitted). Therefore, a judge’s rulings are not a sufficient basis

for recusal in the absence of a showing of pervasive bias. Id.

      Other than the magistrate judge’s recommendation in his supplemental

R&R, Jones point to nothing that would indicate that the magistrate judge was

personally biased towards him, and points to no remarks by the magistrate judge

that would indicate pervasive bias. Thus, the district court did not abuse its

discretion in denying Jones’s motions to strike and recuse.

II. Failure to State a Claim

      We review de novo the district court’s sua sponte dismissal for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), taking the allegations in the

complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003)

(citation omitted). We liberally construe pro se pleadings, holding them to a less



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stringent standard than pleadings drafted by attorneys. Id. at 1160 (citation

omitted).

      Jones’s amended complaint states five causes of action: (1) a violation of the

Privacy Act, 5 U.S.C. § 552a(e)(5); (2) defamation, libel and slander; (3) violation

of the BOP’s “Psychological Services Manual;” (4) breach of Luis’s fiduciary

duty; and (5) fraudulent misrepresentation.

      A. The Privacy Act

      The Privacy Act, 5 U.S.C. § 552a, “governs the government’s collection and

dissemination of information and maintenance of its records [and] generally allows

individuals to gain access to government records on them and to request correction

of inaccurate records.” Perry v. Bureau of Prisons, 371 F.3d 1304, 1304 (11th Cir.

2004) (per curiam) (alteration in original) (citation and quotation omitted).

      The Privacy Act allows an individual to bring a civil action in a district court

against an agency if the agency “fails to maintain any record concerning any

individual with such accuracy, relevance, timeliness, and completeness as is

necessary to assure fairness in any determination” concerning such individual that

is based upon such record. 5 U.S.C. § 522a(g)(1)(C).

      To state a claim under the Privacy Act, a plaintiff must allege “1) that the

government failed to fulfill its record keeping obligation, 2) which failure



                                           5
proximately caused the adverse determination, 3) that the agency failed

intentionally or willfully to maintain the records, and 4) that the plaintiff suffered

actual damages.” Perry, 371 F.3d at 1305 (citation and quotation omitted).

Furthermore, the Privacy Act only authorizes civil actions against an agency, not

individual persons. Id.

         Jones alleges in his amended complaint that “Defendant knowingly and

maliciously made detrimental determinations against [Jones] in his criminal

proceeding.” D.E. 19 at 3. Even construing “Defendant” to include both Luis and

the BOP, Jones has not stated a claim for relief. He did not allege any failure on

the part of the BOP to fulfill its record keeping obligations. Instead, he argues that

Luis “made detrimental determinations” against Jones in his criminal proceeding

on the basis of the record. That is, he does not allege any errors in the BOP’s

record keeping; rather, he alleges that Luis misused the information in the records

to make an adverse determination against Jones. However, Jones cannot bring an

action against a private individual such as Luis. Because Jones has alleged no

failure on the part of the BOP in its record keeping, and cannot state a claim

against Luis as an individual, the district court properly dismissed his Privacy Act

claim.

         B. Defamation Claim



                                            6
       Issues that are not briefed on appeal by a pro se litigant are deemed

abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam)

(citation omitted). On appeal, Jones does not address the dismissal of his

defamation claim, and has abandoned this issue on appeal.

       C. Violation of the BOP’s Psychological Services Manual

       In Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395 (1971), “the

Supreme Court created a remedial scheme to enforce justiciable constitutional

rights.” Denson v. United States, 574 F.3d 1318, 1335–36 (11th Cir. 2009). Thus,

to establish a Bivens claim, a plaintiff must allege, inter alia, deprivation of a

constitutional right. See id. at 1336; Abella v. Rubino, 63 F.3d 1063, 1065 (11th

Cir. 1995) (per curiam) (stating that a Bivens claim challenges the constitutionality

of federal officials’ actions).

       Here, for the first time on appeal, Jones argues that Luis violated his due

process rights by failing to obey BOP policies and procedures. In the district court,

Luis simply alleged that Luis violated the BOP’s “Psychological Services

Manual,” and, as a result, Jones suffered compensable injuries. To the extent that

Jones argues that Luis violated his due process rights, we will not consider an

argument that was not presented below. See Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998) (per curiam). Because Jones did not allege that



                                            7
failure to follow BOP procedures rose to the level of a constitutional violation, the

district court properly dismissed his claim.

      D. Claim Brought Under 18 U.S.C. § 4241

      Pursuant to 18 U.S.C. § 4241(a), the defendant or the attorney for the

Government may file a motion for a hearing to determine the defendant’s mental

competency at any time between commencement of the prosecution and prior to

sentencing. Jones alleges that Luis breached his fiduciary duty to him under

section 4241 by failing to report material information that was beneficial.

      Whether a statute creates a private right of action is a “question of statutory

construction.” Love v. Delta Air Lines, 310 F.3d 1347, 1351 (11th Cir. 2002)

(citation and quotation omitted). There is no indication in the text of section 4241

that it intended to create a private cause of action. Instead, section 4241 is a

criminal procedure statute instructing the court as to how to determine a

defendant’s mental competency to stand trial in a criminal proceeding. Because no

private right of action exists under 18 U.S.C. § 4241, the district court properly

dismissed Jones’s claim under this statute.

      E. Fraudulent Misrepresentation

      Witnesses are granted absolute immunity from § 1983 claims for their

testimony during trials. Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999)



                                           8
(citation omitted). We generally apply § 1983 law to Bivens cases. See Wilson v.

Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998) (citation omitted). The penalty

for false testimony by witnesses is potential prosecution for perjury. Jones, 174

F.3d at 1281 (citation omitted).

      Jones seeks damages for Luis’s allegedly fraudulent testimony during

Jones’s criminal proceedings. Assuming that Luis made fraudulent

misrepresentations during the trial, he is immune from civil liability.

      The district court properly dismissed Jones’s amended complaint for failure

to state a claim. Accordingly, we affirm.

      AFFIRMED.




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