Matthew Staszak v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 20-3069
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Matthew Staszak
lllllllllllllllllllllPlaintiff - Appellant
v.
United States of America; Darlene Gallardo, Unit Manager, Individually and in
her official capacities
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Delta
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Submitted: April 15, 2021
Filed: May 13, 2021
[Unpublished]
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Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.

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Federal inmate Matthew Staszak appeals the district court’s1 adverse judgment
in his action under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Upon de novo
review, we affirm. See Smith v. Toyota Motor Corp., 964 F.3d 725, 728 (8th Cir.
2020); Montin v. Moore, 846 F.3d 289, 292 (8th Cir. 2017). We agree with the
district court that Gallardo was not a proper defendant for the FTCA claims, see
Duncan v. Dep’t of Labor, 313 F.3d 445, 447 (8th Cir. 2002) (per curiam) (United
States is proper defendant in FTCA claim); and that Staszak’s lack of physical injury
barred the FTCA claims against the United States, see 28 U.S.C. § 1346(b)(2) (person
incarcerated while serving sentence for felony conviction may not bring civil action
against United States for mental injury suffered in custody without showing prior
physical injury).
We also agree that the Bivens claims failed. Sovereign immunity barred the
Bivens claims against the United States, and against Gallardo in her official capacity.
See Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998) (sovereign immunity bars
Bivens action against United States). As to the individual-capacity claims against
Gallardo, even assuming a Bivens remedy exists for violations of the Sixth
Amendment, Staszak had no right to counsel in his 28 U.S.C. § 2255 proceeding, see
Abdullah v. Hedrick, 392 F.3d 957, 964 (8th Cir. 2004) (there is no Sixth Amendment
right to counsel in 28 U.S.C. § 2255 proceedings); and the due process claim was
premised on the alleged Sixth Amendment violation, see Bishop v. Tice, 622 F.2d
349, 353 (8th Cir. 1980) (to state Fifth Amendment due process claim, plaintiff must
allege deprivation of property or liberty interest).
1The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable
Patricia S. Harris, United States Magistrate Judge for the Eastern District of Arkansas.
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The judgment is affirmed. See 8th Cir. R. 47B. We deny Staszak’s motions
for counsel.
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