1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JAMES ALLEN MORRIS, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-1387 (RC)

)

)

UNITED STATES SENTENCING )

COMMISSION et al., )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff, a federal prisoner, commenced this action from the Federal Prison Camp in 

Millington, Tennessee. He sues the United States Sentencing Commission, United States 

Attorney General Eric Holder, United States Attorney for the Northern District of Mississippi 

Felicia Adams, and Assistant United States Attorney Scott Leary. Plaintiff seeks to hold the 

defendants liable for “the operation” of certain provisions of the U.S. sentencing guidelines that 

he claims “discriminate against Blacks and Career Offenders.” Complaint for Violation of Civil 

Rights (“Compl.”), ECF No. 1, at 5. He seeks $100,000 in monetary damages and declaratory 

relief. Id. 

Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of 

subject-matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(4) for insufficient 

process, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon 

which relief can be granted.1

 See Mot. to Dismiss, ECF No. 9. Plaintiff has opposed the motion, 

 1

 Plaintiff is proceeding in forma pauperis and, thus, relying on the court officers to “issue and 

serve all process, and perform all duties . . . .” 28 U.S.C. § 1915(d). When, in such proceedings,

the propriety of service is challenged in a motion to dismiss, the court typically would give 

plaintiff the opportunity to provide additional information to cure any service deficiencies before 
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ECF No. 13, and has moved to transfer the case, ECF No. 12. Defendant has replied, ECF No. 

14, and plaintiff was permitted to file a surreply, ECF No. 16. Since plaintiff’s claim against 

Attorney General Holder fails and the remaining claims are foreclosed by certain immunities, the 

Court will grant defendants’ motion to dismiss, deny plaintiff’s motion to transfer, and dismiss 

this case.

I. BACKGROUND

In March 2003, plaintiff pleaded guilty in the U.S. District Court for the Northern District 

of Mississippi to distribution of more than five grams of cocaine base (“crack cocaine”) and 

being a felon in possession of a firearm. See Morris v. Sentencing Comm’n, No. 13-1150, 2013 

WL 3930001 (D.D.C. July 29, 2013) (quoting Morris v. Outlaw, No. 2:09-cv-0025, 2009 WL 

2762461, at *1 (E.D.Ark. Aug. 26, 2009)). Plaintiff was sentenced to concurrent prison terms of 

230 months for the drug conviction and 120 months for the firearms conviction, followed by five 

years of supervised release. Id. “Since [plaintiff] was considered a career offender, [he] was 

subject to the career offender section 4B1.1(b) of the sentencing guidelines. As a result, 

[plaintiff’s] criminal history category and offense level were determined by the career offender 

guideline and not the quantity of drugs attributable to him.” Morris v. United States, No. 

2:04CR74-WAP, 2007 WL 2916550, at *1 (N.D. Miss. Oct. 5, 2007). 

Plaintiff has attempted unsuccessfully to reduce his sentence pursuant to 28 U.S.C. § 

2255 (habeas) and 18 U.S.C. § 3582(c) (sentence modification). See Defs.’ Mem. in Supp. of 

Mot. to Dismiss at 2-3 (setting out unrefuted litigation history). Undeterred, plaintiff has brought 

this action to challenge his inability, as a career offender, to benefit from the amendments to the 

federal sentencing guidelines that lowered the base offense levels for crack cocaine offenses. 

See id. at 5-6 (discussing amendments). 

 

dismissing the case under either Rule 12(b)(4) or Rule 12(b)(5). The dismissal of this case on 

defendants’ other asserted grounds renders this step unnecessary.
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Plaintiff sets forth the following six statements in support of his claims:

(1) The Sentencing Commission, et al, did use their seats to 

discriminate against Blacks and Career Offenders by promulgating policy 

statements to deny them (this plaintiff) the benifit[sic]/lenity of the crack 

amendments reductions.

(2) The enactment of the ‘operation of another guideline’ policy 

statement transforms the career offender enhancement into a separate 

offense (bill of pains) instead of an enhancement to the predicate crack 

offense.

(3) The ‘operation of another guideline’ authorizes a defacto [sic] 

resentencing which violates established sentencing laws and the 5th, 14th, 6th

and 8th amendments.

(4) The ‘operation of another guideline’ is substantive and can not [sic] 

be applied retroactive to plaintiff.

(5) Eric Holder, et al, have conspired to use the ‘operation of another 

guideline’ to prevent plaintiff eligibility for a possible sentencing reduction. 

Defendants know the operation of another guideline is a violation of due 

process when it is used to defacto resentence in 18 USCS 3582 c 2 

proceedings.

(6) The defendants et al, are subjecting plaintiff to cruel and unusual 

punishment, discrimination, and vindictive prosecution by arguing that his 

crack sentence should be held to the 100 to 1 ratio because of the ‘operation 

of another guideline’ notwithstanding the majority of congress has 

acknowledged the arbitrariness and unfairness in the 100 to 1 ratio by 

changing that ratio to, first to a 2-points reduction and finally to the 18 to 1 

ratio.

Compl. at 5-6.

II. LEGAL STANDARDS

1. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies 

outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 

377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court 

of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is the 

plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 561 (1992).

Because subject matter jurisdiction focuses on the Court's power to hear a claim, the 

Court must give the plaintiff's factual allegations closer scrutiny than would be required in 
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deciding a Rule 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal 

Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the Court is not limited 

to the allegations contained in the complaint. See Wilderness Soc'y v. Griles, 824 F. 2d 4, 16 

n.10 (D.C. Cir. 1987).

2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain 

statement of the claim” in order to give the defendant fair notice of the claim and the grounds 

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) 

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate 

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. 

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. 

Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the 

complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, 

e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not 

necessary for the plaintiff to plead all elements of a prima facie case in the complaint. See 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25, 

28-29 (D.D.C. 2010).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). This means that a plaintiff's factual allegations “must be enough 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).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory statements,” are 

therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not 
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accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the 

legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. In 

deciding a motion to dismiss under Rule 12(b)(6), the Court may take judicial notice of facts 

litigated in a prior related case. See Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 49-

50 (D.D.C. 2012). 

III. DISCUSSION

A. Claims for Money Damages

1. Subject Matter Jurisdiction

Sovereign immunity shields the federal government and its agencies from suit and is 

“jurisdictional in nature.” American Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72, 

79 (D.D.C. 2012) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted). 

The government may waive immunity, but such a waiver “must be unequivocally expressed in 

statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations 

omitted); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the 

United States may not be sued without its consent and that the existence of consent is a 

prerequisite for jurisdiction.”). To survive a motion to dismiss under Rule 12(b)(1), “[t]he 

plaintiff bears the burden of establishing both the court's statutory jurisdiction and the 

government's waiver of its sovereign immunity.” American Road & Transp. Builders Ass’n, 865 

F. Supp. 2d at 80 (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Tri–

State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003); Jackson v. Bush, 

448 F. Supp. 2d 198, 200 (D.D.C. 2006)). 

Defendants argue that the Sentencing “Commission, like all federal agencies, enjoys the 

benefits of sovereign immunity.” Defs.’ Mem. of P. & A. at 23-24. But the Commission is not 

an agency. It is “an independent commission in the judicial branch of the United States.”

Mistretta v. U.S., 488 U.S. 361, 368 (1989). As the Supreme Court has observed, “[t]he 
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Sentencing Commission unquestionably is a peculiar institution within the framework of our 

Government. Although placed by the [Sentencing Reform] Act [SRA] in the Judicial Branch, it 

is not a court and does not exercise judicial power.” Id. at 384-85. The Commission’s enacting 

statute, 28 U.S.C. §§ 991-98, requires it to comply with the Administrative Procedure Act’s

(“APA”) rulemaking provisions applicable to agencies. See 28 U.S.C. § 994(x) (“The provisions 

. . . relating to publication in the Federal Register and public hearing procedure, shall apply to the 

promulgation of [sentencing] guidelines.”). But the Court of Appeals has “held that by explicitly 

including the APA's notice and comment provisions in the SRA, Congress implicitly recognized 

that the rest of the APA would not apply to the Commission because it is a part of the judicial 

branch.” Washington Legal Foundation v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C. 

Cir. 1994) (citing United States v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991)). 

Regardless, the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, waives the 

sovereign’s immunity as to certain enumerated claims for money damages, and as used in the 

FTCA, “the term ‘Federal agency’ includes . . . the judicial and legislative branches [and] 

independent establishments of the United States . . . .” 28 U.S.C. § 2671. It is reasonably safe to 

conclude that this broadly worded definition covers the Sentencing Commission. In FTCA 

cases, the United States is substituted as the proper defendant. The United States has not 

consented to be sued for damages based on constitutional violations. Meyer, 510 U.S. at 476-78.

Nor has it consented to be sued for damages based on “the failure of the United States to carry 

out a federal statutory duty in the conduct of its own affairs,” Hornbeck Offshore Transp., LLC v. 

U.S., 569 F.3d 506, 510 (D.C. Cir. 2009) (citation and internal quotation marks omitted), such as

the duty of the Commission to “promulgate and distribute” federal sentencing guidelines. 28 

U.S.C. § 994. Furthermore, the SRA does not contain a “sue-and-be sued clause,” which might 

constitute a waiver of immunity by the Commission as an agency capable of being sued in its 

own name. See Meyer, 510 U.S. at 481 (“[A]gencies authorized to ‘sue and be sued’ are 
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[generally] presumed to have fully waived immunity.”) (citation and internal quotation marks 

omitted). Hence, the claim against the Sentencing Commission for money damages is dismissed

on sovereign immunity grounds.2

 

2. Failure to State a Claim

The form complaint cites 42 U.S.C. § 1983 as the basis of jurisdiction but defendants 

argue correctly that this statute does not apply to federal defendants, Defs.’ Mem. of P. & A. at 

14-15, and plaintiff seems to agree. See Pl.’s Surreply at 1 (“Morris do[es] not seek relief under 

[section] 1983 . . . .”) In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971), the Supreme Court recognized an analogous private cause of action against 

federal officials who “may be held personally liable . . . for unconstitutional conduct in which 

[they were] personally and directly involved.” Staples v. U.S., 948 F. Supp. 2d 1, 3 (D.D.C. 

2013) (citing Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993)).

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Attorney General Holder

To state a claim under Bivens, “a plaintiff must plead that each Government-official 

defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 

556 U.S. at 676. Consequently, high-level officials, such as Attorney General Holder, typically 

are not subject to Bivens liability since they do not routinely participate personally in decisions

about a particular individual at a particular location. See Iqbal at 676-77 (respondeat superior 

and vicarious liability theories found inapplicable to Bivens claim); see also Farmer v. 

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 Regardless, even if an FTCA claim were appropriate under the circumstances, plaintiff has 

failed to show that he has exhausted his administrative remedies by "first present[ing] the claim 

to the appropriate Federal agency. . . ." 28 U.S.C. § 2675. This exhaustion requirement is 

jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per 

curiam) (affirming the district court’s dismissal of unexhausted FTCA claim “for lack of subject 

matter jurisdiction”). 

3

 Plaintiff has not named any individual defendants at the Sentencing Commission.
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Moritsugu, 163 F.3d 610, 615-16 (D.C. Cir. 1998) (explaining why the then-Medical Director 

could not be held personally liable for medical decisions made at a BOP facility). 

Plaintiff’s conclusory allegation that Holder engaged in some sort of conspiracy with the

Sentencing Commission in the “operation” of the guidelines is not supported by facts alleged in 

the complaint. See Gorbey v. United States, 309 Fed.Appx. 425 (D.C. Cir. 2009) (per curiam) 

(affirming dismissal of complaint containing “only conclusory and unsubstantiated allegations of 

conspiratorial conduct”). In addition, plaintiff has not alleged, nor could he credibly do so, that 

Holder participated directly in the local proceedings in which he has sought to have the amended 

crack cocaine guidelines applied to him. Hence, the Bivens claim against Holder is dismissed.

The Mississippi Defendants

As for the remaining defendants in Mississippi, U.S. Attorney Adams and Assistant U.S. 

Attorney Leary, the Court agrees that they are shielded by absolute immunity. See Defs.’ Mem. 

of P. & A. at 15-17. “[A]bsolute immunity[] is a complete bar to any lawsuit against a 

government official based on tasks the official performed that were within the scope of his 

duties.” Pate v. U.S., 277 F. Supp. 2d 1, 7 (D.D.C. 2003) (citing Wagshal v. Foster, 28 F.3d 

1249, 1252 (D.C. Cir. 1994)). Although initially applicable to judges, absolute immunity has 

been extended to “a wide range of persons playing a role in the judicial process, including 

prosecutors.” Id. (citations and internal quotation marks omitted). 

Not all acts performed by prosecutors are protected; rather, “[l]ike judicial immunity, 

absolute prosecutorial immunity turns on the function performed by the prosecutor. Absolute 

immunity is granted only for conduct ‘intimately associated with the judicial phase of the 

criminal process.’ ” Atherton v. District of Columbia, 567 F.3d 672, 683 (D.C. Cir. 2009) 

(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). In addressing an absolute immunity 

argument, “courts look to whether the particular activity in dispute was performed by a 
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prosecutor in his or her official capacity as an advocate for the state in the course of judicial 

proceedings.” Id. (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997)). 

Plaintiff’s cryptic allegations are difficult to follow but it is reasonably safe to conclude 

that they stem from the U.S. Attorney’s arguments made as the government’s advocate in postconviction proceedings. Such conduct falls squarely within the prosecutorial function. See 

Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993) (“[A]ppearing before a judge and presenting 

evidence in support of a motion for a search warrant involved the prosecutor's ‘role as advocate 

for the State.’ ”) (quoting Burns v. Reed, 500 U.S. 478, 491 (1991)) (other citation omitted).4

Hence, the Bivens claims against Adams and Leary are dismissed on absolute immunity 

grounds.5

 

B. Claim for Declaratory or Injunctive Relief

“It is a ‘well-established rule that the Declaratory Judgment Act is not an independent 

source of federal jurisdiction.’ Rather, ‘the availability of [declaratory] relief presupposes the 

existence of a judicially remediable right.’ ” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011)

(quoting C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 

(D.C. Cir. 2002) (other citations omitted). The APA waives the sovereign’s immunity “to the 

extent that declaratory judgment or other equitable relief may be available” to a person harmed 

by agency action. Ballard v. Holinka, 601 F. Supp. 2d 110, 121 (D.D.C. 2009) (citing 5 U.S.C. § 

702). But, as discussed above, the APA’s remedial provisions do not apply to the Sentencing 

 4

 Moreover, assuming the United States Attorney did not personally direct the litigation 

involving plaintiff’s case, she would still be entitled to absolute immunity in her supervisory role 

over such litigation. See generally Van de Kamp v. Goldstein, 555 U.S. 335 (2009). 

5 Since the absolute immunity defense disposes of the claims against the Mississippi 

defendants, the Court will not address their equally persuasive argument for dismissal based on 

lack of personal jurisdiction, see Defs.’ Mem. of P. & A. at 11-14, and it notes the futility of 

transferring the “claims against U.S. Attorney Adam and AUSA Leary . . . .” Pl.’s Mot. to 

Transfer at 1.
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Commission “because it is a part of the judicial branch.” Washington Legal Foundation, 17 F.3d 

at 1450. 

Regardless, plaintiff’s claim for declaratory relief is foreclosed. First, “it is well-settled 

that a prisoner seeking relief from his . . . sentence may not bring such an action” when he seeks, 

such as here, immediate or speedier release from prison, because his sole federal remedy is a writ 

of habeas corpus.6 Williams v. Hill, 74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam); see

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding same). Second, plaintiff’s declaratory 

relief claim also fails because the court that sentenced plaintiff and the United States Court of 

Appeals for the Fifth Circuit have both rejected plaintiff’s premise in habeas and other collateral 

proceedings. In addressing plaintiff’s claim that his offense level was erroneously increased 

because the pre-sentence investigation report (“PSI”) “attributed to him a higher quantity of 

drugs than represented in the plea agreement,” the sentencing court concluded:

The simple and undeniable fact is that the drug quantity disputed by 

[plaintiff] had no effect on the calculation of either his criminal history 

category or his offense level. Rather, both [calculations] were established 

by the guidelines based on [plaintiff’s] status as a career offender. Neither 

the drug quantity used in the plea agreement nor the quantity used in the 

PSI had an effect on the computation of [plaintiff’s] permissible sentencing 

range.

Morris, 2007 WL 2916550, at *2. And, in dismissing one of plaintiff’s appeals as frivolous, the 

Fifth Circuit found his “assertion that he was not sentenced as a career offender [] incorrect” and 

confirmed that “[t]he crack cocaine guidelines amendments do not apply to prisoners sentenced 

as career offenders.” United States v. Morris, No. 13-60271 (5th Cir. Nov. 11, 2013) (per 

curiam) (quoting United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009) (internal quotation 

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 This Court could not hear a habeas claim because it does not have personal jurisdiction over 

plaintiff’s warden. See Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004) 

("[A] district court may not entertain a habeas petition involving present physical custody unless 

the respondent custodian is within its territorial jurisdiction.") (citation omitted).
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marks omitted).

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 The Court lacks subject matter jurisdiction to review the foregoing decisions, 

see 28 U.S.C. §§ 1331, 1332 (general jurisdictional provisions); Fleming v. United States, 847 F. 

Supp. 170, 172 (D.D.C. 1994), cert. denied 513 U.S. 1150 (1995), and otherwise finds that 

plaintiff has stated no claim for declaratory relief.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss the case under Federal Rules of 

Civil Procedure 12(b)(1) and 12(b)(6) is granted, and plaintiff’s motion to transfer is denied. A 

separate Order accompanies this Memorandum Opinion. 

________/s/____________

RUDOLPH CONTRERAS

United States District Judge

Date: July 31, 2014

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 The Fifth Circuit’s conclusion is consistent with that of other circuit courts of appeal. See 

United States v. Mateo, 560 F.3d 152, 155 (3rd Cir. 2009) (joining “many of our sister circuits in 

[] holding” that Amendment 706 lowering the crack cocaine sentencing range “ simply ‘provides 

no benefit to career offenders’ ”) (quoting United States v. Forman, 553 F.3d 585, 589 (7th Cir. 

2009) (per curiam)) (citing cases from the First, Eighth, and Eleventh circuits).