RECOMMENDATION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTIONS FOR MISCELLANEOUS RELIEF

CRAIG B. SHAFFER, Magistrate Judge.

This matter comes before the court on Defendants David Allred, Yvette Brouillet-Fetterhoff, Bureau of Prisons ("BOP"), Chavez, Cordova, Encarananze, Fief, Andrew Fenlon, B. Kasdon, Koch-Coulter, Patricia Rangel, Paul Zohn, and Zonno's (collectively "Defendants") Motion to Dismiss (Doc. #74), filed on April 14, 2014. Defendants' Motion seeks dismissal of all Bivens claims as to the BOP, and all First Amendment and Fifth Amendment Bivens claims as to the remaining Defendants. Also before the court is Plaintiff Bob Custard's Motion for Hearing/Conference (Doc. # 92), filed on June 12, 2014, Motion to Correct (Doc. #117), filed on October 31, 2014, and Motion to Correct (Doc. #119), filed on November 5, 2014. These motions were referred to the Magistrate Judge pursuant to the Order of Reference dated January 2, 2014 (Doc. #31), and respective memoranda dated April 14, 2014 (Doc. #75), June 12, 2014 (Doc. #93), November 3, 2014 (Doc. #118), and November 5, 2014 (Doc. #120). This court has carefully considered the motions and related briefing, the entire case file, and applicable case law. For the following reasons, I recommend that Defendants' Motion to Dismiss be granted. I further grant Plaintiff's October 31, 2014 Motion to Correct, deny Plaintiff's November 5, 2014 Motion to Correct, and deny Plaintiff's Motion for Hearing/Conference.

BACKGROUND

Mr. Custard, a pro se prisoner incarcerated at the United States Penitentiary, High Security, in Florence, Colorado ("ADX Florence"), filed this lawsuit pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403, U.S. 388 (1971) claiming violations of his Eighth Amendment right against cruel and unusual punishment, Fifth Amendment right to due process, and First Amendment right against retaliatory conduct. Plaintiff seeks monetary, declaratory, and injunctive relief.1

Plaintiff filed a Complaint on August 26, 2013, which named the present Defendants as well as C.A. Wilson, Mark Collins, Richard Madison, and Yu. Plaintiff simultaneously filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Doc. #3). Magistrate Judge Boland issued an Order on August 28, 2013, granting Plaintiff's § 1915 motion and directing him to file an amended complaint that comports with Fed. R. Civ. P. 8 and D.C.COLO.LCivR 10.1. (See Doc. #4). On October 10, 2013, Plaintiff filed an Amended Complaint asserting eight claims. (Doc. #10). The pleading alleges that Defendants have retaliated against him for his administrative remedy filings and lawsuits, and are otherwise violating his Fifth Amendment and Eight Amendment rights, by: (1) subjecting him to excessive noise in his prison cell, causing him some loss of hearing; (2) denying him medical care for his Hepatitis C (and, specifically, his daily severe abdominal pain and nausea); (3) denying him adequate medical and psychological care for his circadian sleep disorder; (4) denying him skin graft surgery for an injury to his right hand that is painful and constantly bleeds; (5) denying him dental care for broken dentures; (6) refusing to remedy building code violations in the facility's recreation yard; (7) falsely labeling Plaintiff as a "snitch" and thereby placing him at risk of harm from other inmates; and (8) denying him medications for a nerve injury to his right arm and shoulder.2 (See Doc. #10; see also Doc. #11). The allegations supporting these claims are comprised entirely of statements made by Defendants throughout a span of several years expressing their refusal to provide Plaintiff with the protection and medical treatment necessary to address the above conditions unless he ceases to file grievances and lawsuits. (See, e.g., Doc. #10 at pp. 13, 15) (Defendant Chavez stated on September 15, 2013, "I could easily pad those inside doors too . . . or give you ear plugs . . . but I won't because you file grievances and lawsuits against us staff." Defendant Allred stated, "If you came to me on the streets in this condition and you had the money or insurance I would definitely treat your [Hepatitis C Virus] because you really need it . . . but nobody cares about prisoners . . . it costs too much to treat all inmates' HCV . . . but if you stop filing lawsuits on Dr. Wilson and me I will treat your HCV.").

On October 16, 2013, Magistrate Judge Boland issued an Order withdrawing his Order granting Plaintiff leave to proceed in forma pauperis, and directing Plaintiff to show cause why he should not be denied leave to proceed pursuant to § 1915 as to his second through eighth claims on the basis that Plaintiff, on three or more prior occasions, had brought an action in federal court that was dismissed on the grounds that it was frivolous, malicious, or that it failed to state a claim. (Doc. #11) (citing 28 U.S.C. § 1915(g)). Plaintiff filed his Response to the Order to Show Cause on November 15, 2013. (Doc. #22). District Judge Babcock found that Plaintiff alleged sufficient facts to meet the imminent danger of serious physical injury exception to 28 U.S.C. § 1915(g) as to claims one, two, four, and five of the Amended Complaint, and granted Plaintiff's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 as to those claims. (Doc. #24). Judge Babcock further determined that claims three and eight, when construed together, met the requirements of § 1915(g), and therefore granted Plaintiff's § 1915 Motion with respect to claim three as bolstered by the allegations of claim eight. (See id.). Judge Babcock found that the allegations contained in claims six and seven failed to indicate that Plaintiff faced imminent danger of serious physical injury, and accordingly ordered Plaintiff to pay the filing fee pursuant to 28 U.S.C. § 1914(a) if he wished to pursue those claims. (See id.). Mr. Custard subsequently filed a "Motion for Court Order Correcting Demonstrable Errors and Re-Evaluation of Claim Seven," in which he added allegations regarding the imminent danger of serious physical injury caused by being labeled as a "snitch," and voluntarily dismissed claims six and eight. (Doc. #25). On December 23, 2013, the court granted Plaintiff's request to proceed under 28 U.S.C. § 1915 with respect to claim seven. (Doc. #26).

The present Defendants waived service on February 11, 2014. (See Doc. #50). On March 17, 2014, Plaintiff filed a Motion to Dismiss Defendants Wilson, Collins, Madison, Wells, and Yu (Doc. #63). This court granted the Motion the following day as self-executing pursuant to Rule 41(a)(1). (Doc. #67).

On April 14, 2014, Defendants filed a Motion to Dismiss all Bivens claims as to the BOP, and all First Amendment and Fifth Amendment Bivens claims as to the remaining Defendants. (Doc. #74). The Motion also sought to dismiss Defendant Cordova for lack of subject matter jurisdiction. Id. Plaintiff filed his Response to the Motion to Dismiss on May 14, 2014. (Doc. #87). Defendants filed their Reply on June 2, 2014. (Doc. #91). On June 12, 2014, Plaintiff filed the pending "Motion for Court-Ordering Hearing on Defendant's Motion to Dismiss." (Doc. #92). Defendants filed a Response to the Motion on July 7, 2014. (Doc. #96). Plaintiff filed his Reply on July 11, 2014, in which he asked the court to strike Defendants' Response. (Doc. #97).

On September 25, 2014, Plaintiff asked the court to appoint him counsel. (Doc. #102). On October 7, 2014, Plaintiff filed a "Motion for Correction of the Record," asking the court for miscellaneous relief, including a request that the court "strike (Doc. 102?)."3 (Doc. #104). On October 14, 2014, Plaintiff filed a "Motion for Order to Correct Court Order," regarding a footnote in a previously issued order. (See Doc. #106). On October 21, 2014, this court granted Plaintiff's October 7, 2014, Motion to the extent it sought to withdraw his Motion for Appointment of Counsel, and denied as unnecessary Plaintiff's October 14, 2014, Motion. (Doc. #110).

On October 27, 2014, Plaintiff filed a "Motion for Revission [sic] of Court Order (Doc. 110) and Renewed Motion to Strike Response to Motion to Dismiss,"4 (Doc. #112). This court construed the Motion as one for reconsideration and denied it on October 29, 2014. (See Doc. #116). On October 31, 2014, Plaintiff filed the pending "Motion to Correct Doc. 112 and Combined Submission of Plaintiff's Opposition to Motion to Dismiss Exhibit 10" (Doc. #117), in which Plaintiff instructs that Document No. 110 was entitled "Rescission" not "Revission," and seeks to submit an exhibit in opposition to Defendants' Motion to Dismiss. On November 5, 2014, Plaintiff filed the pending "Motion to Correct [Doc. #] 116 Order," stating that he had filed a Motion for Rescission of Document No. 110, not a Motion for Reconsideration, and repeating his request that the court strike Defendants' Response to Plaintiff's Motion for Hearing/Conference. (Doc. #119).

STANDARD OF REVIEW

A. Fed. R. Civ. P. 12(b)(1)

Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. United States ex. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

B. Fed. R. Civ. P. 12(b)(6)

Under Rule 12(b)(6) a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The burden is on the plaintiff to frame `a complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp., 550 U.S. at 556). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

Because Mr. Custard is appearing pro se, the court "review[s] [his] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) ("[Court's] role is not to act as [pro se litigant's] advocate"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues") (internal citation omitted). Furthermore, the court may, at any time and of its own accord, dismiss any action that is frivolous or which fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed. R. Civ. P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1108-10 (10th Cir. 1991).

ANALYSIS

A. No Bivens Remedy for Mr. Custard's First and Fifth Amendment Claims

In Bivens, 403 U.S. at 397, the United States Supreme Court recognized an implied cause of action for damages against federal officers alleged to have violated the prisoner petitioner's Fourth Amendment rights. Since then, the Supreme Court has found the same remedy available for violations of an individual's rights under the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Due Process Clause of the Fifth Amendment. See Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442 U.S. 228 (1979). Beyond these types of violations, a Bivens remedy should be inferred only if (1) there is no alternative, existing process for protecting a constitutional interest; and (2) if there are no special factors counseling hesitation against a judicially created remedy. Robbins v. Wilkie, 551 U.S. 537, 550 (2007).

"[T]he purpose of Bivens is only `to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy' for harms caused by an individual officer's unconstitutional conduct." Peoples v. CCA Detention Centers, 422 F.3d 1090, 1096 (10th Cir. 2005) (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2002)). "Whether a Bivens action exists for a given constitutional violation must be decided on a case-by-case basis." Burton-Bey v. United States, No. 96-3241, 1996 WL 654457, at *1 (10th Cir. Nov. 12, 1996) (citing Beattie v. Boeing Co., 43 F.3d 559, 564 (10th Cir. 1994)).

1. First Amendment Claim

Mr. Custard claims Defendants retaliated against him for filing lawsuits and grievances by withholding ear plugs, padding for his cell door jambs, dental work, and treatment for Hepatitis C Virus, his circadian rhythm disorder, and a deteriorating skin graft. A prisoner's right to access the courts is protected by the First Amendment. See, e.g., Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996). "[Prison] officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights . . . even where the action taken in retaliation would be otherwise permissible." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). A retaliation claim requires a plaintiff to show: (1) he was engaged in constitutionally protected activity; (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct. Nielander v. Bd. of Cnty. Comm'rs of Cnty. of Republic, 582 F.3d 1155, 1165 (10th Cir. 2009).

Defendants argue Plaintiff's retaliation claim should be dismissed because Plaintiff has alternative avenues of relief available to him, and there is no recognized remedy under Bivens that would support such a claim. Plaintiff may utilize a number of other mechanisms to seek relief for the alleged retaliation, and in fact he has. Mr. Custard asserts Eighth Amendment claims based on the alleged depravations that constitute his claim for retaliation and he seeks a prospective injunction ordering the BOP to provide medical treatment. Plaintiff could also pursue a remedy through the mandamus statute or utilize the BOP's Administrative Remedy Program. A Bivens remedy should not be allowed when other "meaningful safeguards or remedies for the rights of persons situated" are available under circumstances comparable to the plaintiff's. National Commodity and Barter Ass'n v. Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989) (internal quotation marks and citation omitted).

Furthermore, the Supreme Court has specifically declined to extend a Bivens remedy to alleged violations of the First Amendment (see Bush v. Lucas, 462 U.S. 367, 390 (1983); see also Reichle v. Howards, 132 S.Ct. 2088, 2093 n. 4 (2012)), and courts in this District have similarly declined to fashion a Bivens remedy for such claims. See, e.g., Williams v. Klein, 12-cv-01580-REB-BNB, 2014 WL 716982, at *2 (D. Colo. Feb. 24, 2014). Plaintiff insists that the Supreme Court opinion Jones v. Bock, 549 U.S. 199 (2007), qualifies Carlson and Passman and instructs against declining to extend a Bivens remedy. However, Bock concerns whether exhaustion of administrative remedies under the Prison Litigation Reform Act must be pled by the prisoner plaintiff or raised as an affirmative defense by the defending party. In addition, the petitioners in Bock had filed for relief pursuant to § 1983, rather than Bivens. Finally, the Court has twice re-affirmed its position against extending Bivens remedies to First Amendment claims since issuing Bock. See Iqbal, 129 S. Ct. at 1948; Reichle, 132 S. Ct. at 2093.

2. Fifth Amendment Claim

Mr. Custard claims Defendants also violated his rights under the Due Process Clause of the Fifth Amendment by withholding ear plugs, padding for his cell door jambs, dental work, and treatment for Hepatitis C Virus, his circadian rhythm disorder, and a deteriorating skin graft. The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law. . . ." U.S. CONST. Amend. V. To state a due process claim, Plaintiff must show: (1) a recognized liberty or property interest has been interfered with by Defendants, and (2) the procedures attendant to that deprivation were not constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989), overruled in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). The asserted interest "must rise to more than `an abstract need or desire,' Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972), and must be based on more than `a unilateral hope,' Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)." Thompson, 490 U.S. at 460. Protected liberty interests "may arise from two sources-the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983), overruled in part on other grounds by Sandin, 515 U.S. at 472. When an inmate contends that the conditions of confinement give rise to a constitutionally-protected liberty interest, the court must focus its inquiry on whether such conditions impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484, implicitly overruled on other grounds by Edwards v. Balisok, 520 U.S. 641 (1997). See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006).

Defendants argue that a Bivens remedy is inappropriate for Plaintiff's Fifth Amendment claims because of the multiple alternative mechanisms that serve to protect his due process rights. Defendants argue in the alternative that Plaintiff has not alleged that Defendants failed to afford him the requisite level of process.

In Davis v. Passman, a Bivens remedy was fashioned for violations of the Due Process clause of the Fifth Amendment; however, the Court explicitly qualified its ruling as necessitated by the utter lack of alternative remedies available to that plaintiff. See Davis, 442 U.S. at 245 ("there are available no other alternative forms of judicial relief. For Davis, as for Bivens, it is damages or nothing."). Such is not the case here. Plaintiff may obtain relief for the alleged conduct and deprivations through the Eighth Amendment claims and request for injunctive relief presented in this lawsuit. "[T]here is no reason to rely on a court-created remedy, like Bivens, when Congress has created an adequate means for obtaining legal redress." Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005).

In addition, special factors exist here counseling the court to proceed cautiously in creating a remedy. Prisoners retain "only a narrow range of protected liberty interests," (Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir. 1994) (quotation marks and citation omitted)), and federal courts are cautioned to "afford appropriate deference and flexibility to [ ] officials trying to manage a volatile environment." Sandin, 515 U.S. at 482. Furthermore, Plaintiff, on three or more occasions while incarcerated, has brought an action in federal court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted. (See "Order Directing Plaintiff to Show Cause," Doc. #11 at p. 2). See also 28 U.S.C. § 1915(g).

Finally, Mr. Custard has not stated a claim for violation of his due process rights for which he could recover even if a Bivens remedy were deemed appropriate. Plaintiff is not entitled to protective processes unless he can show a liberty interest. The liberty interest created by prison regulations "will generally be limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Penrod, 94 F.3d at 1406 (citation omitted). Even if he could demonstrate a liberty interest in the items and treatment allegedly withheld, he has not shown that the procedures attendant to the deprivation were constitutionally insufficient. Plaintiff's Amended Complaint is replete with statements allegedly made by Defendants indicating their frustration with his prolific filing of grievances and lawsuits and their resultant retaliatory inclinations, but the allegations fail to establish the source of the interest and the process to which he was due.

Accordingly, I recommend dismissing the First and Fifth Amendment claims as inappropriate for creating a Bivens remedy.

B. Plaintiff's Bivens Claims as to the Bureau of Prisons

Plaintiff seeks monetary damages and injunctive relief as to the BOP. (See Doc. #10 at p. 30). A federal prisoner who alleges a constitutional deprivation may assert a Bivens claim against the offending individual officer. Malesko, 534 U.S. at 72. "The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP." Id. See also Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). The Bivens remedy has never been considered a proper vehicle for altering an entity's policy, unlike injunctive relief, which "has long been recognized as the proper means for preventing entities from acting unconstitutionally." Malesko, 534 U.S. at 74. Accordingly, I find that all Bivens claims asserted against the BOP should be dismissed.

C. Claims as to Defendant Cordova

Plaintiff claims Defendant Cordova retaliated against him and violated his Fifth Amendment and Eighth Amendment rights by withholding hearing aids, treatment for his circadian rhythm disorder, treatment for his skin graft, and dental work necessary to repair broken dentures. Defendants argue this court lacks jurisdiction to consider Plaintiff's claim because Cordova is the Assistant Health Services Administrator at ADX Florence, "a commissioned officer with the Public Health Service (PHS)," and is not subject to Bivens liability. (Declaration of Frank Cordova ("Cordova Declaration"), Doc. #74-1 at ¶ 1).5

Pursuant to 42 U.S.C. § 233(a), the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 is the exclusive remedy "for any personal injury caused by a PHS officer or employee performing a medical or related function `while acting within the scope of his office or employment.'" Hui v. Castaneda, 559 U.S. 799, 801-02 (2010) (citing 42 U.S.C. § 233(a)). In Hui, the Supreme Court concluded "the plain language of § 233(a)" precluded PHS officers and employees from personal liability subject to Bivens actions for harms arising out of conduct occurring within the scope of their employment. Hui, 559 U.S. at 802. Plaintiff appears to concede this jurisdictional restriction in his Response (see Doc. #87) ("Plaintiff cedes that [Defendant] Cordova cannot be held personally liable due to . . . Hui), and asks the court to "substitute the BOP as [Defendant] for Cordova," on the basis that Plaintiff "exhaust[ed] tort claims [within] 6 months of filing this action." (Doc. #87 at p. 6).

This court is unclear how substituting one named party for the other maneuvers Plaintiff's claims around the fatal flaws articulated within this Recommendation. First, Plaintiff may not combine a motion with a response to a different motion. See D.C.Colo.LCivR 7.1(d). Second, and more importantly, while Plaintiff cited 28 U.S.C. § 1346 in the Amended Complaint as a basis for jurisdiction (see Doc. #10 at p. 7), he did not assert or otherwise articulate an FTCA claim in that pleading. Furthermore, Plaintiff did not allege that he exhausted the administrative requirements for such a claim. Section 2675(a) instructs:

28 U.S.C. § 2675(a). On October 31, 2014, Plaintiff submitted a photocopy of a certificate of mailing and return receipt addressed to "Counsel BOP INC Regional Offices" in support of his Response to Defendants' Motion to Dismiss, and wrote on the photocopy, "[Plaintiff] avers that these U.S. Postage forms and receipts to BOP/NCR Gen. Counsel were never answered nor responded to." (Doc. #117 at p. 2). This exhibit, submitted four months after Defendants' Motion to Dismiss was fully briefed, cannot change the fact that Plaintiff did not plead the appropriate claim. While Plaintiff is entitled to a less stringent review of his pleadings, "the Court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Plaintiff's insertion of "conspiracy" three times in the Amended Complaint does not suffice to give Defendants fair notice that a tort claim has been pled, let alone demonstrate that Plaintiff exhausted the requirements of 28 U.S.C. § 2675(a). Accordingly, Defendant Cordova should be dismissed from this lawsuit.

CONCLUSION

For the forgoing reasons, this court RECOMMENDS that Defendants' Motion to Dismiss (Doc. #74) be GRANTED. This lawsuit would then be limited to Plaintiff's Eighth Amendment Bivens claims, claim for injunctive relief against the BOP, and claim for declaratory relief. This court ORDERS that Plaintiff's Motion to Correct (Doc. #117) is GRANTED to the extent Plaintiff seeks to submit "Exhibit 10" to supplement his Response to Defendants' Motion to Dismiss and correct Docket No. 112 to read "Rescission of Court Order." This court further ORDERS that Plaintiff's Motion to Correct (Doc. #119) is DENIED and Plaintiff's Motion for Hearing/Conference (Doc. # 92) is DENIED.6

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

ORDER AND JUDGMENT FN*

FN* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

*1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

Plaintiff James Burton-Bey appeals the district court's order granting summary judgment in favor of defendants on his Bivens and Federal Tort Claims Act (FTCA) claims. We affirm.

While in custody at the U.S. Penitentiary in Terre Haute, Indiana, Burton purchased a dark blue Dallas Cowboys cap through approved prison channels. Subsequent to this purchase, the Bureau of Prisons had adopted a regulation prohibiting the issuance or sale of dark blue or black clothing items to prisoners. Burton was transferred to the U.S. Penitentiary in Leavenworth, Kansas, and prison officials there confiscated the cap after inventorying his personal property. After an aborted administrative remedial action, plaintiff filed an administrative claim for damages under the FTCA, 29 U.S.C. § 2675(a), which was denied. He then initiated this action, alleging his cap had been confiscated in violation of his Fifth Amendment procedural due process rights, and seeking damages under the FTCA.

We review the grant of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Summary judgment should be granted where, taking the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995).

I. Bivens claim.

Plaintiff claims defendants deprived him of property without due process of law, in violation of the Fifth Amendment. His claim is based on the assumption that a procedural due process claim can form the basis of a Bivens action. This assumption is open to question. In Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held a violation of the Fourth Amendment "by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct." Plaintiff had no reasonable expectation of privacy giving rise to a Fourth Amendment claim. See Hudson v. Palmer, 468 U.S. 517, 522-29 (1984).

The Supreme Court has extended Bivens to actions for violations of the equal protection component of the Fifth Amendment Due Process Clause. Davis v. Passman, 442 U.S. 228 (1979). However, not all due process violations provide a basis for a Bivens action. See Schweiken v. Chilicky, 487 U.S. 412, 429 (1988). Whether a Bivens action exists for a given constitutional violation must be decided on a case-by-case basis. See Beattie v. Boeing Co., 43 F.3d 559, 564 (10th Cir.1994). However, we need not reach the issue of whether Bivens should be extended to plaintiff's procedural due process claim because we conclude plaintiff suffered no violation of his rights under the Fifth Amendment Due Process Clause for which he could recover if such an action were recognized.

*2 Neither a claim that defendants acted negligently nor a claim that defendants acted intentionally and without authority can provide plaintiff with an actionable Bivens claim. If defendants failed to issue the cap to plaintiff as a result of their negligence, there would be no unconstitutional deprivation of property. See Daniel v. Williams, 474 U.S. 327 (1986) (negligence of federal agent resulting in property loss not constitutional deprivation). Plaintiff also claims defendants acted beyond their authority in intentionally retaining his cap. Unauthorized intentional deprivation of property does not constitute a violation of the Due Process Clause if a meaningful post-deprivation remedy for the loss is available. See Hudson, 468 U.S. at 533; Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11th Cir.1986). If defendants were acting without authorization, as plaintiff claims, the FTCA would provide a post-deprivation remedy, permitting an action for conversion under Kansas law, the adequacy of which plaintiff does not contest.

Finally, if defendants were acting pursuant to governing regulations, as the district court found, the availability of post-deprivation remedies would be immaterial. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982) (post-deprivation remedies inadequate where deprivation of property caused by conduct pursuant to established procedure). However, in such a case, defendants' actions "would be within the outer perimeter of [their] duties and would not have violated any clearly established constitutional right and therefore [they] would be immune from suit." Rodriguez-Mora, 792 F.2d at 1527.

Whether defendants acted negligently, intentionally and without authority, or pursuant to governing regulations, plaintiff could make no claim for a violation of his due process rights. Defendants were entitled to summary judgment on plaintiff's Bivens claim.

II. Federal Tort Claims Act claim.

Kansas law recognizes an action in conversion for "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights." Watkins v. Layton, 324 P.2d 130 (Kan.1958). The FTCA permits the United States to be held liable for certain tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Conversion claims are permitted under the FTCA. See 28 U.S.C. § 2680(h).

Defendants' refusal to issue plaintiff's cap after inventorying his personal property and confiscation of the cap were not unauthorized. Bureau of Prisons regulation P.S. 5580.03 provides: "Inmates shall not be issued or permitted to purchase any clothing items which are dark blue or black." 5580.03(5)(b). "Contraband includes material prohibited . . . by regulation." 5580.03(6)(a). "Staff shall seize any item in the institution which has been identified as contraband." 5580.03(7)(a). The regulation also provides for circumstances in which a transferred inmate cannot retain personal property: "Personal property permitted in the sending institution, but not in the receiving institution, shall either be retained at the sending institution or be mailed to a destination of the inmate's choice." 5580.03(9)(c). Plaintiff was offered the option of sending the cap to an address of his choice. Defendants were entitled to summary judgment on plaintiff's FTCA claim.

*3 Plaintiff's request to proceed in forma pauperis on appeal is DENIED and this appeal is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The mandate shall issue forthwith.

Background: Federal inmate brought Bivens action against various prison officials, alleging due process violation and First Amendment retaliation, as related to his complaints about sleep deprivation and penalties that followed his complaints. Defendants moved to dismiss.

Holdings: The District Court, Blackburn, J., adopting one report and recommendation of Boyd N. Boland, United States Magistrate Judge, 2013 WL 7628827, and adopting in part and rejecting in part another report and recommendation of same magistrate, 2013 WL 7661569, held that:

(1) dismissal for failure to prosecute was warranted on claims against correctional officer;

(2) inmate's Bivens claim against prison official, alleging First Amendment retaliation and seeking damages, was barred;

(3) inmate stated Bivens claim against prison official, alleging First Amendment retaliation and seeking declaratory and injunctive relief; and

(4) prison official was not entitled to qualified immunity on inmate's First Amendment retaliation claim seeking declaratory and injunctive relief.

Motion granted in part and denied in part.

*1172 Kevin Raynell Williams, Florence, CO, pro se.

Mark S. Pestal, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER CONCERNING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Blackburn, United States District Judge

**1 This matter is before me on the following: (1) the Recommendation of United *1173 States Magistrate Judge [# 39] FN1 filed April 25, 2013; (2) the Defendants' Motion To Dismiss [# 42] filed May 10, 2013; and (3) the Recommendation of United States Magistrate Judge [# 46] filed November 7, 2013. No objections were filed concerning the first recommendation [# 39]. Both the plaintiff and one defendant, Captain Klien, filed objections [# 54 & # 56] to the second recommendation [# 46]. I approve and adopt the first recommendation [# 39]. I approve and adopt the second recommendation [# 46] in part and respectfully reject it in part.

FN1. "[# 39]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

I. STANDARD OF REVIEW

[1] Because no objections were filed concerning the first recommendation [# 39], I review that recommendation only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir.2005).FN2 Finding no error, much less plain error, in the magistrate judge's recommended disposition, I approve and adopt the first recommendation.

FN2. This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the second recommendation [# 46] to which any party objects. I have considered carefully the recommendation, the objections, and the applicable case law.

[2] The plaintiff is proceeding pro se. Thus, I have construed his pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

II. BACKGROUND

The plaintiff, Kevin Williams, is an inmate at the Federal Correctional Institution in Florence, Colorado. In his complaint, Mr. Williams alleges that from March 2011 to March 2012, and possibly at other times, he was awakened each night while he was sleeping. As the guards were conducting count, they would beat on his cell door. Mr. Williams contends these actions were taken to deprive him of adequate sleep.

Mr. Williams filed grievances concerning this conduct. On May 16, 2011, the defendant, Captain Klien, met with the plaintiff. Allegedly, Captain Klien used "racial epithets and . . . a tone of voice that was threatening and intimidating."

Recommendation [# 46], p. 5. According to Mr. Williams, Captain Klien threatened that he would take Mr. William's job if Mr. Williams did not stop filing grievances. Captain Klien asked Mr. Williams how many grievances he had filed "and said I bet your kind can't even count that high." Id. According to Mr. Williams, Captain Klien placed Mr. Williams in the extremely restricted Special Housing Unit (SHU) to keep him from filing grievances. Id., p. 12. While Mr. Williams was in the SHU, Captain Klien allegedly tolerated and encouraged efforts undertaken by guards under Captain Klien's supervision to deprive Mr. Williams of sleep. Amended Prisoner Complaint [# 21], p. 12. FN3

FN3. As detailed in the second recommendation [# 46], Mr. Williams alleges in his amended complaint several other claims against other defendants.

*1174 III. ANALYSIS

**2 [3] In the first recommendation [# 39], the magistrate judge recommends that the complaint be dismissed as to defendant, C.O. Royal, based on Mr. William's failure to prosecute those claims. After noting that the defendant named as C.O. Royal had not been served with a summons and complaint, the magistrate judge ordered Mr. Williams to show cause why the complaint should not be dismissed as to C.O. Royal based on the plaintiff's failure to prosecute. The plaintiff did not respond. Under Fed. R. Civ. P. 41 and D.C. COLO. LCivR 41.1, dismissal for failure to prosecute is proper in these circumstances. Thus, I approve and adopt the first recommendation [# 39].

In the second recommendation [# 46], The magistrate judge recommends that the motion to dismiss be denied as to the due process and retaliation claims asserted against Captain Klien. As to all other claims and defendants, the magistrate judge recommends that the motion to dismiss be granted. In his objection [# 54], Mr. Williams contends the claims against defendants other than Captain Klien should not be dismissed. After careful consideration of the relevant record, I overrule the objections and approve and adopt the recommendation concerning the claims against defendants other than Captain Klien.

Addressing the claims against Captain Klien, the magistrate judge concludes that the allegations of Mr. Williams are sufficient to allege a retaliation claim against Captain Klien, based on the right of Mr. Williams to be free from retaliation for filing grievances, an exercise of First Amendment rights by Mr. Williams. The magistrate judge notes also that Captain Klien does not move to dismiss the due process claim asserted against him.

In his objection [# 56], Captain Klien contends that Mr. Williams may not assert a claim for damages based on an alleged violation of the First Amendment under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In addition, Captain Klien argues that the allegations of Mr. Williams do not state a claim for First Amendment retaliation and that, in any case, Captain Klien is entitled to qualified immunity on this claim.

A. First Amendment Bivens Claim for Damages

[4] Captain Klien is correct when he contends that Mr. Williams may not assert a Bivens claim for damages based on an alleged violation of the First Amendment. The Supreme Court of the United States has not recognized a Bivens claim for damages based on an alleged violation of the First Amendment. Indeed, the Supreme Court has refused explicitly to acknowledge that federal prisoners may bring a claim for monetary damages based on an alleged First Amendment violation. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (noting that the Court has "declined to extend Bivens to a claim sounding in the First Amendment"); Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (in addressing a First Amendment retaliation claim by a federal employee against a supervisor, the Court refused to recognize a right to seek damages for a First Amendment violation under Bivens, noting availability of alternative remedies). Conceivably, the Court has not recognized such claims in the context of claims by prison inmates because prisoners may pursue claims for injunctive relief based on an alleged violation of the First Amendment. See Corr. Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate who may not assert *1175 Bivens claim for damages against private prison contractor may bring suit in federal court for injunctive relief and file grievances using Bureau of Prisons administrative remedy program); Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (in claim of alleged government harassment and intimidation of landowner aimed at extracting easement from landowner, the existence of adequate, alternative bases for pursuing a particular claim amount "to convincing reason for the Judicial Branch to refrain from providing new and freestanding remedy in damages").

**3 On the other hand, the United States Court of Appeals for the Tenth Circuit has recognized the viability of a First Amendment retaliation claim by a prison inmate. Williams v. Meese, 926 F.2d 994, 998 (10th Cir.1991) (federal prisoner alleging job transfer in retaliation for filing grievances states a claim) ( citing Frazier v. Dubois, 922 F.2d 560, 561-62 (10th Cir.1990) (prison officials do not have discretion to punish federal prisoner for exercising First Amendment rights by transferring prisoner to different institution). However, these cases do not address directly the question of whether such a claim may be brought as a Bivens claim for damages.

Based on the foregoing authority, I respectfully reject the recommendation of the magistrate judge to the extent the magistrate judge recommends that the motion to dismiss be denied as to the Bivens claim for damages based on the First Amendment retaliation claim asserted by Mr. Williams. Rather, I conclude that the motion to dismiss must be granted as to any claim for damages included in the First Amendment claim of Mr. Williams.

B. Failure To State A Claim

[5] The fact that Mr. Williams may not assert a Bivens claim for damages based on a violation of the First Amendment does not preclude him from seeking declaratory and injunctive relief. See Corr. Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate who may not assert Bivens claim for damages against private prison contractor may bring suit in federal court for injunctive relief and file grievances using Bureau of Prisons administrative remedy program); Simmat v. U.S. Bureau of Prisons 413 F.3d 1225, 1231-1233 (10th Cir.2005) (federal courts have jurisdiction to issue injunctions to protect rights safeguarded by the Constitution). Captain Klien does not argue otherwise. However, Captain Klien does argue that the allegations in the complaint are not sufficient to state a viable First Amendment retaliation claim. I disagree.

Mr. Williams alleges that Captain Klien expressed his disdain for Mr. Williams and his grievances and then arranged for continued adverse actions to be taken against Mr. Williams. These allegations are sufficient to allege (1) that the plaintiff sought to exercise his First Amendment rights by filing a grievance; (2) that the defendant was aware of the plaintiff's attempt to file grievances; (3) that as a result of that awareness, the defendant took action to impose an adverse consequence on the plaintiff; and (4) that the consequence would chill a person of ordinary firmness from engaging in the constitutionally protected activity. These allegations are sufficient to state a retaliation claim. See Leverington v. City of Colorado Springs, 643 F.3d 719, 729 (10th Cir.2011); Rocha v. Zavaras, 443 Fed.Appx. 316, 318 (10th Cir.2011). To the extent Mr. Williams asserts a First Amendment retaliation claim, I overrule the objections of Captain Klein and approve and adopt the recommendation of the magistrate judge.

*1176 C. Qualified Immunity

[6] [7][8] Finally, Captain Klien argues he is entitled to qualified immunity concerning the First Amendment claim of Mr. Williams. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would know. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). However, qualified immunity is not a shield against a claim for injunctive relief. See, e.g., Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir.2001). The remaining First Amendment claim of Mr. Williams is a claim for injunctive relief. Thus, there is no viable claim of qualified immunity.

IV. CONCLUSION & ORDERS

**4 Based on the authority cited above, I conclude that the plaintiff may not assert a First Amendment claim for damages under Bivens. Thus, I respectfully reject that portion of the recommendation [# 46] of the magistrate judge in which the magistrate judge recommends that the motion to dismiss be denied as to this claim. Instead, I grant the motion to dismiss to the extent the plaintiff asserts against Captain Klien a First Amendment claim for damages under Bivens. Otherwise, I approve and adopt the recommendation of the magistrate judge.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [# 39] filed April 25, 2013, is APPROVED and ADOPTED as an order of this court;

2. That under Fed. R. Civ. P. 41 and D.C.COLO.LCivR 41.1, all claims against defendant, C.O. Royal, are DISMISSED; that C.O. Royal is DROPPED as a defendant; and that the case caption is AMENDED accordingly;

3. That the Recommendation of United States Magistrate Judge [# 46] filed November 7, 2013, respectfully is REJECTED to the extent the magistrate judge recommends that the Defendants' Motion To Dismiss [# 42] filed May 10, 2013, be denied as to the First Amendment claim for damages under Bivens.

4. That the objections [# 56] of defendant, Captain Klien, are SUSTAINED to the extent Captain Klein objects to the recommendation that the motion to dismiss be denied as to the First Amendment claim for damages under Bivens;

5. That otherwise, the Recommendation of United States Magistrate Judge [# 46] filed November 7, 2013, is APPROVED and ADOPTED as an order of this court;

6. That otherwise, the objections [# 56] of defendant, Captain Klien, are OVERRULED;

7. That the objections [# 54] of the plaintiff are OVERRULED;

8. That the Defendants' Motion To Dismiss [# 42] filed May 10, 2013, is DENIED as to the due process claim against Captain Klien and the First Amendment retaliation claim in which Mr. Williams seeks injunctive relief;

9. That otherwise, the Defendants' Motion To Dismiss [# 42] filed May 10, 2013, is GRANTED as to all other claims and defendants, including the First Amendment claim for damages under Bivens; and

10. That the defendants named as C.O. J. Sander, C.O. Dockins, C.O. Price, and C.O. Koch are DROPPED as a defendants,*1177 and the case caption is AMENDED accordingly.