McLeod v. Knowles

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40248
Conference Calendar
BRYON DALE MCLEOD,
Plaintiff-Appellant,
versus
JAMES W. KNOWLES,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-382
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Byron Dale McLeod appeals the district court’s dismissal for
lack of jurisdiction of his suit against James W. Knowles, who
was appointed to represent McLeod at resentencing. McLeod’s suit
alleged that Knowles failed to pursue a claim that changes to the
Sentencing Guidelines should apply retroactively, resulting in an
unlawful sentence.
Liberally construed, McLeod’s pro se brief asserts that
Knowles was a federal employee and, therefore, jurisdiction
exists under the Westfall Act/Federal Tort Claims Act (FTCA) and,

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alternatively, for a constitutional violation on the basis of
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), or 42 U.S.C. § 1983.
The FTCA does not provide for suits against federal
employees. Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988).
“Thus, an FTCA claim against a federal agency or employee as
opposed to the United States itself must be dismissed for want of
jurisdiction.” Id.
Further, an attorney appointed to represent an indigent
defendant is not subject to suit under § 1983 or Bivens. See
Polk County v. Dodson, 454 U.S. 312, 325 (1981); United States
ex rel. Simmons v. Zibilich, 542 F.2d 259, 261 (5th Cir. 1976);
O’Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 1972).
Because McLeod’s appeal fails to raise any issues of
arguable merit, we dismiss it as frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Further,
we caution McLeod that any future filings containing abusive and
insulting language directed towards judicial officers will result
in the imposition of sanctions.
DISMISSED; SANCTION WARNING ISSUED.

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