United States District Court, S.D. Mississippi, Northern Division
CARL R. BROWN PLAINTIFF
T. BROWN, ET AL. DEFENDANTS
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE
the Court is a complaint filed by Carl R. Brown, a federal
prisoner who is proceeding pro se and in forma
pauperis. See 28 U.S.C. § 1915. Defendants
have filed a Motion to Dismiss  pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure on claims remaining
after the adoption  of the previous Report and
Recommendation  entered in this action. Brown has also
filed a Motion for Summary Judgment  and a Motion for
Issuance of Subpoenas . For the reasons that follow, the
undersigned finds that that the motion to dismiss  should
be granted, and Plaintiff's motions , , should be
FACTS AND PROCEDURAL HISTORY
facts, procedural history, and relevant legal standards
governing this case were detailed in the Report and
Recommendation  entered on January 16, 2018. In sum, the
Report and Recommendation recommended dismissal of Plaintiff
claims of discrimination brought pursuant to Title VII of the
Civil Rights Act of 1964. The Court found, however, that the
Defendants' Motion to Dismiss  did not address
Brown's claims brought pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), 42 U.S.C. § 1981, and Mississippi
law. Defendants have now moved for dismissal on the foregoing
claims, and the Court turns to address them.
asserts that Defendants violated his First Amendment rights
by discriminating against him based upon his religion. The
Supreme Court has “not found an implied damages remedy
under the Free Exercise Clause” in Bivens
actions, and it has “declined to extend Bivens
to a claim sounding in the First Amendment.”
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).
Accordingly, because Plaintiff's allegations invoking the
First Amendment do not state a cognizable claim under
Bivens, they should be dismissed.
Plaintiff's claims brought pursuant to the Fourteenth
Amendment should be dismissed. Brown alleges that Defendants
violated his rights to equal protection under the Fourteenth
Amendment. However, because the Fourteenth Amendment requires
state action, and Plaintiff has brought these claims
against Defendants based on their alleged deeds as
federal employees, Brown cannot maintain a
Fourteenth Amendment claim against them. See McGuire v.
Turnbo, 137 F.3d 321, 323 (5th Cir. 1998).
Claims Based on 42 U.S.C. § 1981
Brown appears to allege a claim pursuant to 42 U.S.C. §
1981, there was no contractual employment relationship at
issue in the prison employment context. Accordingly, §
1981 offers Brown no relief. See Domino's Pizza, Inc.
v. McDonald, 546 U.S. 470, 476-477 (2006); cf.
Bulger v. United States Bureau of Prisons, 65 F.3d 48,
49-51 (5th Cir.1995)(finding that prisoners have no liberty
or protected property interest in particular prison job
State Law Claims
have also moved for dismissal of Brown's state law
claims. In his complaint, Plaintiff appears to allege claims
based upon two Mississippi statutes, Mississippi Code
Annotated §§ 73-3-55 and 97-23-43. Section 73-3-55,
a criminal statute, prohibits the unlicensed practice of law.
Section 97-23-43 provides the criminal penalties for
unlicensed practice of law. Neither statute provides for a
private right of action. In other words, Brown, as a private
party, cannot maintain claims against Defendants in a civil
action based on an alleged violation of a criminal statute.
See Madden v. Harrison, 2010 WL 1238972, at *4
(S.D.Miss. Feb. 25, 2010)(“[A] private party may not
enforce criminal statutes through a civil action.”);
see also Oliver v. Collins, 914 F.2d 56, 60 (5th
Cir. 1990)(noting that there is no constitutional right to
have someone criminally prosecuted).
reasons set forth in this Report and Recommendation,
Defendants' Motion to Dismiss  should be granted, and
this case should be dismissed with prejudice. Plaintiff's
Motion for Summary Judgment ...