Yasir Mehmood v. MS. Castano

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 26, 2019
• Docket: 18-13171
• Status: Unpublished

Opinion

Case: 18-13171 Date Filed: 08/26/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13171 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-22301-CMA

YASIR MEHMOOD,

Plaintiff-Appellant,

versus

MS. CASTANO, SDDO - Krome SPC, JUAN ACOSTA, AFOD - Warden Krome SPC, ICE,

Defendants-Appellees.

________________________

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

(August 26, 2019)

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: Case: 18-13171 Date Filed: 08/26/2019 Page: 2 of 5

Yasir Mehmood, proceeding pro se, appeals the district court’s order sua

sponte dismissing his 42 U.S.C. § 1983 civil-rights complaint, construed by the

district court as a complaint under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Immigration and

Customs Enforcement (“ICE”) and two of its employees.

Mehmood is a native and citizen of Pakistan and lawful permanent resident

who was civilly detained by ICE pending the outcome of his removal proceedings.

During his detention, he filed a pro se complaint alleging that ICE denied him

adequate access to legal materials, which hindered his ability to develop and present

arguments in support of his efforts to appeal his criminal conviction and contest his

removal. He further alleged that Cuban and other Spanish-speaking detainees were

allowed more time in the law library.

Because Mehmood sought to proceed in forma pauperis (“IFP”), the district

court screened his complaint and determined that it failed to state a plausible claim

to relief. See 28 U.S.C. § 1915(e)(2)(B)(ii). Largely adopting the recommendations

of a magistrate judge, the court determined that ICE was not subject to suit under

Bivens, that Warden Acosta was not liable as a supervisor, and that Mehmood failed

to state a plausible access-to-courts or equal-protection claim. With regard to the

latter point, the court found that Mehmood failed to allege an actual injury to support

an access-to-courts claim, see Al-Amin v. Smith, 511 F.3d 1317, 1332 (11th Cir.

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2008) (“‘[A]ctual injury’ is a constitutional prerequisite to an inmate’s access-to-

courts claim.”), and that he failed to show that Spanish-speaking detainees in his

particular unit—the medical unit—received more favorable treatment than he did.

Mehmood now appeals.

A district court’s sua sponte dismissal for failure to state a claim under

§ 1915(e)(2)(B)(ii) is reviewed de novo. Troville v. Venz, 303 F.3d 1256, 1259 (11th

Cir. 2002). Section 1915(e) provides that an in forma pauperis action “shall” be

dismissed “at any time” if it fails to state a claim for which relief may be granted.

28 U.S.C. § 1915(e)(2)(B)(ii).

We liberally construe the filings of pro se parties. Campbell v. Air Jamaica

Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But despite the liberal construction we

afford non-lawyers who represent themselves, “issues not briefed on appeal by a pro

se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th

Cir. 2008). Appellants are required to specifically and clearly identify any issues

they want us to address in their initial briefs. Access Now, Inc. v. Sw. Airlines Co.,

385 F.3d 1324, 1330 (11th Cir. 2004). Legal arguments not briefed on appeal are

deemed abandoned and will not be considered on the merits. Id.

In his brief on appeal, Mehmood does not address the district court’s order

dismissing his complaint or its reasons for the dismissal. Instead, he copies virtually

verbatim the allegations of his complaint—with minor changes like using

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“appellant” instead of “plaintiff.” Even with liberal construction, that is not

sufficient to properly raise an issue for appeal. E.g., Four Seasons Hotels & Resorts,

B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004) (holding that

a party may not incorporate by reference arguments presented to the district court,

but must specifically and clearly identify the issues presented for review, with

citations to the authorities and portions of the record on which the appellant relies).

Because Mehmood has not argued on appeal that the district court erred by

dismissing his complaint for failure to state a claim under § 1915(e)(2)(B)(ii), nor

addressed any of its reasons for doing so, he has abandoned any such argument.

Accordingly, we affirm.

In any case, even if we assume that the issues are properly preserved, the

district court did not err in dismissing Mehmood’s complaint. First, a Bivens action

cannot be brought against a federal agency such as ICE. See F.D.I.C. v. Meyer, 510

U.S. 471, 486 (1994) (declining to extends Bivens liability to federal agencies).

Second, Mehmood did not allege that Warden Acosta personally participated in

denying him access to the law library, and Bivens does not provide for supervisory

liability on the basis of vicarious liability. See Dalrymple v. Reno, 334 F.3d 991,

995 (11th Cir. 2003) (holding that supervisory officials are not liable under Bivens

for the unconstitutional acts of their subordinates).

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Finally, Mehmood’s complaint does not state a plausible constitutional claim.

With respect to his access-to-courts claim, Mehmood’s allegations do not establish

actual injury. The Ninth Circuit gave him an extension, and he alleged no injury

other than that he believed that two hours of library access a day was not enough.

See Al-Amin, 511 F.3d at 1332 (“In order to show actual injury, a plaintiff must

provide evidence of such deterrence, such as a denial or dismissal of a direct appeal,

habeas petition, or civil rights case that results from actions of prison officials.”

(quotation marks omitted)). As for his equal-protection claim, Mehmood’s

allegations do not show that Cuban and Spanish-speaking detainees in his medical

unit, rather than in general population, received more favorable treatment than he

did. See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection

Clause does not forbid classifications. It simply keeps governmental decisionmakers

from treating differently persons who are in all relevant respects alike.”). And his

complaint is otherwise insufficient to show that any differential treatment was

because of race or ethnicity. Accordingly, the district court properly dismissed

Mehmood’s complaint.

AFFIRMED.