Robert Joseph Dale Clinkenbeard v. Jamie Auten

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 14, 2024*
Decided June 17, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-2217
ROBERT JOSEPH DALE
CLINKENBEARD,
Plaintiff-Appellant,
v.
JAMIE AUTEN,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:22-cv-00277-JRS-MJD
James R. Sweeney II,
Judge.
O R D E R
Robert Clinkenbeard, a federal prisoner, alleged that the pharmacist at the prison
refused to give him an allergy medication in violation of his rights under the Eighth
Amendment. He sought damages only, and the district court dismissed his complaint
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-2217 Page 2
because his claim involved an impermissible extension of the implied constitutional
right to damages recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388 (1971). On appeal, Clinkenbeard concedes that he cannot state a Bivens claim, and
he has no other basis to obtain the damages that he seeks; thus, we affirm.
According to Clinkenbeard, whose allegations we take as true at this stage,
Wallace v. Baldwin, 895 F.3d 481, 483 (7th Cir. 2018), he obtained a prescription for nasal
spray to treat his severe allergies. When he attempted to fill the prescription, a prison
pharmacist, Jamie Auten, refused to release it to him. Without the medication,
Clinkenbeard suffered severe migraines and other allergy symptoms.
Clinkenbeard sued Auten, seeking damages for her deliberate indifference to his
medical needs in violation of his rights under the Eighth Amendment. The district court
screened his complaint, 28 U.S.C. § 1915A, and permitted him to proceed on that claim.
Clinkenbeard then amended his complaint to add allegations that Auten had singled
him out for the denial of medication while other prisoners continued to receive theirs.
The court struck the amended complaint as futile because his additional allegations did
not state a viable Bivens claim.
Next, Auten moved to dismiss the original complaint for failure to state a claim.
After four months passed without response from Clinkenbeard, the court granted the
motion and closed the case. The court ruled that it was not authorized to fashion a
Bivens remedy for Clinkenbeard’s Eighth Amendment claim—which arose in a context
meaningfully different from previous Bivens cases permitting damages—because
alternative remedies, such as injunctive relief, were available to him. See Egbert v. Boule,
596 U.S. 482, 492–93 (2022). Clinkenbeard appealed.
While his appeal was pending, Clinkenbeard filed a motion to reconsider,
arguing that his claim could proceed under 42 U.S.C. § 1983. The court dismissed the
motion because § 1983 does not apply to federal officers like Auten.
On appeal, Clinkenbeard concedes that he cannot state a Bivens claim but argues
that the district court should have permitted him to amend his complaint once more so
that he could “re-label” his claim as arising under 42 U.S.C. § 1983. But that proposal
would be futile: As the district court explained, his claim against a federal officer may
not proceed under § 1983, which applies only to persons acting under color of state law.
See Ziglar v. Abbasi, 582 U.S. 120, 130 (2017). Moreover, regardless of how Clinkenbeard

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No. 23-2217 Page 3
labeled his claim, its fundamental defect is that he is seeking damages from a federal
officer in a context that is not permitted by Bivens caselaw. See Egbert, 596 U.S. at 492–93.
Clinkenbeard also argues that the district court abused its discretion when it
denied his two motions to recruit counsel. He first asked the court to recruit counsel for
him at the outset of his case, but the court correctly declined to do so because he had not
shown that he had attempted to obtain counsel on his own. Pruitt v. Mote, 503 F.3d 647,
654–55 (7th Cir. 2007) (en banc); Thomas v. Anderson, 912 F.3d 971, 978 (7th Cir. 2018).
Ten days later, still before Auten had been served, Clinkenbeard submitted another
motion requesting counsel, this time showing that he had tried to recruit counsel
himself. But the court reasonably denied the motion because he had personal
knowledge of the events in this case, and describing those events was all that was
required at the beginning stage of this litigation. See Pruitt, 503 F.3d at 658–59.
AFFIRMED

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