USCA4 Appeal: 23-6516 Doc: 13 Filed: 02/07/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6516

JESSE KYLE KEITH,

Plaintiff - Appellant,

v.

J. C. STREEVAL; JOHN DOES,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James P. Jones, Senior District Judge. (7:23-cv-00040-JPJ-PMS)

Submitted: January 9, 2024 Decided: February 7, 2024

Before THACKER and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Jesse Kyle Keith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-6516 Doc: 13 Filed: 02/07/2024 Pg: 2 of 3

PER CURIAM:

Jesse Kyle Keith, a federal prisoner housed in the Special Housing Unit (“SHU”) at

United States Penitentiary Lee, appeals from the district court’s order dismissing his

complaint pursuant to 28 U.S.C. § 1915A. Citing Bivens v. Six Unknown Named Agents

of the Fed. Bureau of Narcotics,

(1971), Keith’s complaint raised claims of

unconstitutional prison conditions in the SHU and violation of his procedural due process

rights. He sought both damages and injunctive relief. We affirm in part and vacate and

remand in part.

We “review de novo a district court’s dismissal under 28 U.S.C. § 1915A for failure

to state a claim, applying the same standards as those for reviewing a dismissal under Fed.

R. Civ. P. 12(b)(6).” De’lonta v. Johnson,

(4th Cir. 2013). “To survive

a motion to dismiss under that rule, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.”

(internal quotation

marks omitted).

We find that the district court properly dismissed Keith’s Bivens claims for

damages. See Tate v. Harmon,

(4th Cir. 2022) (finding no Bivens cause

of action for allegedly unconstitutional conditions of confinement); Mays v. Smith,

(4th Cir. 2023) (rejecting Mays’ procedural due process claim arising from

placement in administrative segregation). However, the district court did not separately

consider Keith’s claims for injunctive relief, and Bivens does not govern claims for

injunctive relief. See Solida v. McKelvey,

(9th Cir. 2016). We find

that, liberally construed, Keith’s complaint may state a claim for injunctive relief or Keith

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may be able to do so following amendment. In any event, the district court should consider

these claims in the first instance. *

Accordingly, we affirm the dismissal of Keith’s claims for money damages, vacate

the dismissal of his claims for injunctive relief, and remand for further proceedings. We

deny Keith’s motion for injunctive relief on appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

* The district court rejected Keith’s procedural due process claim as unexhausted and conclusory, rather than on the basis that the claim sought to expand Bivens. We find that any claim for damages is not authorized by Bivens. Regarding Keith’s procedural due process claim, the district court did not address Keith’s exhaustion allegations or explain why they were insufficient. To the extent that Keith’s claims were conclusory, the district court did not explain why it failed to grant Keith an opportunity to amend. See Coleman v. Peyton,

(4th Cir. 1965) (per curiam) (holding that, if a pro se complaint contains a potentially cognizable claim, the plaintiff should be given an opportunity to particularize his allegations).

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