Watkins v. Food Service Staff Members

Opinion

Case: 21-40377 Document: 00516572807 Page: 1 Date Filed: 12/09/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED

December 9, 2022

No. 21-40377 Lyle W. Cayce Clerk

Eric Watkins,

Plaintiff—Appellant,

versus

Food Service Staff Members, Individually and in Their Official Capacity; Unknown Parties, Other Correctional Officers, Individually and in Their Official Capacity,

Defendants—Appellees.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:11-CV-599

Before Wiener, Higginson, and Wilson, Circuit Judges. Stephen A. Higginson, Circuit Judge:* Eric Watkins brings a Bivens action against food service staff members at the Beaumont Federal Correctional Complex, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), claiming they denied him breakfast on December 18, 2008, as retaliation for grievances he filed against them. The district court dismissed Watkins’s action for failure

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 21-40377 Document: 00516572807 Page: 2 Date Filed: 12/09/2022

No. 21-40377

to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), concluding it was untimely. “We may affirm on any ground supported by the record, including one not reached by the district court.” Hammervold v. Blank, 3 F.4th 803, 813 (5th Cir. 2021) (quoting Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014)).

As we concluded in a closely related appeal Watkins previously filed, his complaint is best construed as a Bivens action for First Amendment retaliation. Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons, 998 F.3d 682, 685 (5th Cir. 2021). However, the Supreme Court recently held that “there is no Bivens action for First Amendment retaliation.” Egbert v. Boule, 142 S. Ct. 1793, 1807 (2022). Therefore, without reaching the question of timeliness, we conclude that Watkins has failed to state a claim upon which relief may be granted.

AFFIRMED.