Opinion
CIV-23-1137-G
01-31-2024
YUSUFU DANMOLA, Plaintiff, v. BUREAU OF PRISONS, Defendant.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner appearing pro se, brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights. (Doc. 1). This matter was referred to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B). (Doc. 3). As set forth fully below, the undersigned recommends that the Court DISMISS Plaintiff's Complaint.
Plaintiff cites 42 U.S.C. § 1983 as the basis for his claim. (Doc. 1, at 3). This provision only allows suit against individual defendants who are acting under color of state law and does not apply to individuals acting as agents of the federal government. See Dry v. United States, 235 F.3d 1249, 1255-56 (10th Cir. 2000). The undersigned therefore liberally construes Plaintiff's claim against the Bureau of Prisons as arising under Bivens. See Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 859 (10th Cir. 2016) (noting that “the Supreme Court in Bivens approved a judicially-implied cause of action allowing individuals to seek damages for unconstitutional conduct by federal officials.”).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
Federal law mandates the screening of each complaint in a civil action filed by a prisoner seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or any portion of it that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Id.
The court's review of a complaint under § 1915A(b)(1) mirrors that required for reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (internal quotation marks and citation omitted). A complaint fails to state such a claim when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions in a complaint, however, are not assumed to be true; legal conclusions “must be supported by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Id.; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal).
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Factual and Procedural Background
Plaintiff is a federal inmate currently confined at the Federal Correctional Institution (“FCI”) in El Reno, Oklahoma. (Doc. 1, at 1); see also BOP Register No. 54779-177, https://www.bop.gov/inmateloc/ (last visited Jan. 30, 2024). On January 11, 2017, a jury in the Northern District of Texas convicted Plaintiff on one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). See United States v. Danmola, Case No. 16-CR-222-Y (N.D. Tx. Jan. 11, 2017).
The undersigned takes judicial notice of the docket sheets and related documents in Plaintiff's federal criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
Plaintiff has since challenged his conviction through multiple habeas proceedings. He twice unsuccessfully sought relief pursuant to 28 U.S.C. § 2255 in the United States District Court for the Northern District of Texas. See Danmola v. United States, 2020 WL 6135702, at *1 (N.D. Tex. Oct. 19, 2020), certificate of appealability denied, 2021 WL 5875181 (5th Cir. July 27, 2021); Danmola v. United States, Case No. 22-CV-354-Y (N.D. Tx. May 4, 2022) (dismissing § 2255 petition as second or successive and denying certificate of appealability). He challenged the legality of his conviction pursuant to 28 U.S.C. § 2241 before the United States District Court for the Western District of Louisiana, but his petition was dismissed upon a finding that he “cannot meet the requirements of the saving clause” of § 2255. Danmola v. USA, 2021 WL 5711684, at *3 (W.D. La. Nov. 15, 2021), report and recommendation adopted, 2021 WL 5711427 (W.D. La. Dec. 1, 2021). And, in this Court, Plaintiff has two pending habeas petitions seeking relief under 28 U.S.C. § 2241, both recommended for dismissal. See Danmola v. United States of America, Case No. CIV-23-234-G (W.D. Okla. May 26, 2023) (Doc. 15); Danmola v. Goldey, Case. No. CIV-23-825-G (W.D. Okla. Oct. 11, 2023) (Doc. 8).
On December 11, 2023, Plaintiff filed the present action against the Bureau of Prisons, arguing that he is “being held beyond [his] maximum date of imprisonment due to a capricious method of application of the PATTERN Score and First Step Act.” (Doc. 1, at 2). He asserts that his PATTERN score inaccurately reflects that his crime of conviction under 18 U.S.C. § 922(g)(1) is a violent offense, and if the score were calculated correctly, he would be classified as low recidivism, “and the year that [he] ha[s] earned due to accumulation of Federal Time Credits would allow [him] to be released immediately.” (Id. at Ex. 1, at 1). He asserts that his case manager “refused to change the entry and said she was instructed by Region to apply the PATTERN score in such manner” and that he “contacted the Warden . . . and he disclosed he was unable to do anything about it.” (Id.) As relief, Plaintiff seeks $5,000,000 in damages. (Doc. 1, at 8).
In December 2018, Congress passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (the “FSA”). The FSA set up a program where inmates convicted of non-violent offenses could earn up to 15 days credit for every 30 days participation in prison jobs. But only inmates with minimal or low PATTERN scores are assigned to these programs and activities. PATTERN is a risk and needs assessment tool issued by the DOJ that assigns point values to each inmate based on a variety of factors and then assesses a “score” of minimum, low, medium, or high-risk for recidivism. See “The First Step Act of 2018: Risk and Needs Assessment System - UPDATE, U.S. Department of Justice: Office of the Attorney General,” https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system-updated.pdf (last visited Jan. 30, 2024). See also Reynolds v. Williams, 2022 WL 4598871, at *3 (S.D. Ill. Sept. 30, 2022).
Seeking to clarify Plaintiff's aim, the undersigned ordered Plaintiff to cure his filing by specifying his intention to proceed with a civil rights complaint rather than a habeas action and by paying the appropriate filing fee. (Doc. 4, at 2). The Clerk of Court received Plaintiff's civil filing fee in the amount of $405 on January 2, 2024. (Doc. 6).
III. Plaintiff's Claims Against The Bureau Of Prisons Are Barred By Sovereign Immunity.
Plaintiff's claims against the Bureau of Prisons under Bivens are barred by sovereign immunity. “The concept of sovereign immunity means that the United States cannot be sued without its consent.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). Federal courts lack subject matter jurisdiction over claims for damages against the United States where the United States has not waived its sovereign immunity. Iowa Tribe of Kan. and Neb. v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010); Harrell v. United States, 443 F.3d 1231, 1234 (10th Cir. 2006). Only Congress can waive the sovereign immunity of the United States. Merril Lynch, 960 F.2d at 913.
Congress has not extended the Bivens remedy to federal agencies. See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001); FDIC v. Meyer, 510 U.S. 471, 486 (1994). Thus, Plaintiff cannot bring a Bivens action for damages against the Bureau of Prisons. Consequently, Plaintiff's claims against the Bureau of Prisons for damages should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. See Myrie v. Fed. Bureau of Prisons, No. CIV-10-875-C, 2011 WL 6210661, at *2 (W.D. Okla. Sept. 26, 2011), report and recommendation adopted, 2011 WL 6210681 (W.D. Okla. Dec. 14, 2011).
IV. Plaintiff's Claims Attacking the Duration of His Confinement Are Also Barred by Heck v. Humphrey.
More problematic, however, is Plaintiff's attempt to challenge the duration of his federal sentence of imprisonment via a civil rights action. Such a claim must be brought pursuant to a petition for writ of habeas corpus rather than as a civil rights action. See Preiser v. Rodriquez, 411 U.S. 475, 488-89 (1973). (See also Doc. 4). For a federal prisoner such as Plaintiff, a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 is the appropriate method of challenging the manner in which a sentence is executed, including the calculation of time credits under the First Step Act. See, e.g., Patillar v. Goldey, No. CIV-22-866-SLP, 2023 WL 4307651, at *1 (W.D. Okla. May 26, 2023), report and recommendation adopted, 2023 WL 4306702 (W.D. Okla. June 30, 2023).
Indeed, it is well established that a prisoner cannot use a civil rights action to attack “the fact or duration of his confinement.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (emphasis added). Thus, a civil rights claim for monetary damages or equitable relief is not cognizable if it implies the invalidity of a criminal conviction or sentence. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Under the rule set forth in Heck, a prisoner cannot use a civil rights action to obtain relief
where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence.... [A] . . . prisoner's [civil rights] action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration.Wilkinson, 544 U.S. at 81-82. “Therefore, a Bivens action that essentially challenges the validity of a sentence as calculated is barred by Heck, absent a showing that the sentence calculation ruling has already been invalidated by other official means.” Rodriguez v. Streeval, 2020 WL 7630710, at *3 (W.D. Va. Dec. 22, 2020), aff'd, 2022 WL 337130 (4th Cir. Feb. 4, 2022), and aff'd, 2022 WL 337130 (4th Cir. Feb. 4, 2022). See Heck, 512 U.S. at 486-87 (prisoner may not bring civil rights claims unless he “prove[s] that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus”); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (applying Heck to bar a § 1983 claim challenging the validity of procedures used to deprive a prison inmate of good-time credits); Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (applying Heck to Bivens actions).
Plaintiff's claim that his PATTERN score has been incorrectly calculated, depriving him of the ability to earn or use time credits, falls into the category of civil rights claims barred by Heck. If he could persuade a fact-finder to agree with his contention that he has been improperly denied sentence credits, that finding would necessarily imply the invalidity of his current term of confinement as calculated. Plaintiff presents no evidence that the challenged application of the PATTERN score has been invalidated or overturned. Accordingly, Plaintiff's Bivens claim on this issue is barred by Heck and must be dismissed. See Rodriguez, 2020 WL 7630710, at *3 (applying Heck to dismiss Bivens claim about plaintiff's missing credits for prior custody time served); Merth v. Mgmt. & Training Corp., 2022 WL 783962, at *3 (E.D. Cal. Mar. 11, 2022) (Bivens claim barred by Heck because plaintiff's “claim that [prison] failed to award him good conduct sentencing credits [under the FSA] would demonstrate the invalidity of the duration of his confinement”).
Although the undersigned recommends dismissal with prejudice for lack of subject matter jurisdiction over the Defendant BOP, it should be noted that “claims dismissed on Heck v. Humphrey grounds should be dismissed without prejudice.” Bryner v. Utah, 429 Fed.Appx. 739, 744 (10th Cir. 2011) (citing Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996) (“When a § 1983 claim is dismissed under Heck, the dismissal should be without prejudice.”)).
V. Recommendation and Notice of Right to Object.
For these reasons, it is recommended Plaintiff's claim be DISMISSED with prejudice for lack of subject matter jurisdiction. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by February 21, 2024, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.
ENTERED.