UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

JACK MANN, 

 Plaintiff, 

v. 

DR. TABELING, 

 Defendant. 

 

______________________________/ 

Case no. 14-cv-12762 

Hon. Judith E. Levy 

Mag. David R. Grand 

ORDER OF SUMMARY DISMISSAL

I. Introduction 

 Pending before the Court is Plaintiff Jack Mann’s pro se civil 

rights complaint, filed pursuant to of Bivens v. Six Unknown Named 

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971), and the 

Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”). Plaintiff is 

incarcerated at the Federal Correctional Institution (“FCI”) in Milan, 

Michigan. Plaintiff names a single defendant, Dr. Tabeling. The 

complaint alleges that Dr. Tabeling violated his rights under the Eighth 

and Fourteenth Amendments by denying him access to the Residential 

Drug Abuse and Treatment Program. 

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II. Standard 

 A pro se civil rights complaint is to be construed liberally. See 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jones v. Duncan, 840 

F.2d 359, 361 (6th Cir. 1988). 

 Plaintiff has been granted leave to proceed without prepayment of 

the filing fee for this action due to his indigence. Under the Prison 

Litigation Reform Act (“PLRA”), the Court is required to sua sponte 

dismiss an in forma pauperis complaint before service on a defendant if 

it determines that the action is frivolous or malicious, fails to state a 

claim upon which relief can be granted, or seeks monetary relief against 

a defendant who is immune from such relief. See 42 U.S.C. § 1997e(c); 

28 U.S.C. § 1915(e)(2)(B). Similarly, the Court is required to dismiss a 

complaint seeking redress against government entities, officers, and 

employees that it finds to be frivolous or malicious, fails to state a claim 

upon which relief may be granted, or seeks monetary relief from a 

defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). A 

complaint is frivolous if it “lacks an arguable basis either in law or in 

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

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 While a complaint need not contain “detailed factual allegations,” 

a plaintiff’s obligation to provide grounds entitling him to relief 

“requires more than labels and conclusions, and a formulaic recitation 

of the elements of a cause of action will not do.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (internal and end citations omitted). 

“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).” Id. at 555-56 (citations 

and footnote omitted). 

III. Analysis 

 Plaintiff states that Dr. Tabeling denied him participation in the 

Bureau of Prison’s Residential Drug Abuse Treatment Program 

(‘RDAP’). The Bureau of Prisons (“BOP”) has discretion to reduce an 

inmate’s sentence by up to one year if the inmate was convicted of a 

qualifying offense and successfully completes the RDAP. 18 U.S.C. § 

3621(e)(2)(B). Plaintiff claims Dr. Tabeling declared him ineligible for 

the program because plaintiff was deemed to have a violent past, but he 

allowed convicted sex offenders to participate in the program. Plaintiff 

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argues this violates his rights under the Equal Protection Clause and 

the Eighth Amendment. 

 “The Equal Protection Clause of the Fourteenth Amendment 

commands that no State shall ‘deny to any person within its jurisdiction 

the equal protection of the laws,’ which is essentially a direction that all 

persons similarly situated should be treated alike.” City of Cleburne v. 

Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 

457 U.S. 202, 216 (1982)). The Fourteenth Amendment applies only to 

states and state actors, not the federal government. San Francisco Arts 

& Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21 (1987). 

However, the Fifth Amendment applies to federal actions, and has an 

equal protection component. Ctr. for Bio-Ethical Reform, Inc. v. 

Napolitano, 648 F.3d 365, 379 (6th Cir. 2011). The Sixth Circuit 

recently noted, “[w]e evaluate equal protection claims against the 

federal government under the Fifth Amendment just as we would 

evaluate equal protection claims against state and local governments 

under the Fourteenth Amendment.” Id. A government violates the 

Equal Protection Clause if it makes “distinctions which either burden a 

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fundamental right, target a suspect class, or intentionally treat one 

differently from others similarly situated without any rational basis for 

the difference.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 

(6th Cir. 2005). The “threshold element of an equal protection claim is 

disparate treatment.” Scarbrough v. Morgan County Bd. of Educ., 470 

F.3d 250, 260 (6th Cir. 2006). 

 Plaintiff does not allege that he is being treated differently from 

other inmates convicted of similar offenses. In fact, plaintiff states that 

he and other inmates convicted of violent offenses are being treated the 

same as one another, but differently than inmates in a “different class,” 

i.e. those convicted of sex offenses. Therefore, he does not satisfy the 

threshold element for an equal protection claim. See id. Even if the 

threshold element were satisfied, he still fails to allege a viable equal 

protection claim. No fundamental right is implicated because inmates 

do not have a protected liberty interest in RDAP participation. Moody 

v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (federal prisoners have no 

constitutional or inherent right to participate in rehabilitative 

programs). Plaintiff does not mention membership in a protected class 

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such as race or gender. Because neither a suspect classification nor a 

fundamental right is involved, the BOP’s decision is reviewed under the 

rational basis test. Id. at 440-42. “Preventing the early release of 

potentially violent inmates is a legitimate governmental interest.” 

Jones v. Quintana, 2013 WL 502197, *4 (E.D. Ky. Feb. 8, 2013) citing 

Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998); see also 

Coleman v. Martin, 363 F.Supp.2d 894, 902 (E.D. Mich. 2005) (finding 

that Michigan had a rational basis to consider a prisoner’s mental 

health when deciding whether to grant parole for purposes of protecting 

public safety). Accordingly, the BOP has a rational basis for excluding 

prisoners convicted of violent offenses from participation in the RDAP. 

 Plaintiff also alleges that the denial of RDAP participation 

violates the Eighth Amendment’s ban on cruel and unusual 

punishment. “[T]he Eighth Amendment prohibits punishments which, 

although not physically barbarous, involve the unnecessary and wanton 

infliction of pain, or are grossly disproportionate to the severity of the 

crime.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citation omitted) 

(internal quotation marks omitted). While there is no “static test” to 

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determine whether the conditions of confinement violate the Eighth 

Amendment, prison officials violate the Eighth Amendment when they 

act with deliberate indifference to an inmate’s health or deprive an 

inmate of basic human needs, food, medical care or sanitation. Id. at 

346–47. An Eighth Amendment conditions-of-confinement claim has 

both a subjective and an objective component. Id. The objective 

component requires a plaintiff to show that the deprivations to which he 

has been subjected deprived him of “the minimal civilized measure of 

life’s necessities.” Rhodes, 452 U.S. at 347 (1981). The subjective 

component requires the plaintiff to demonstrate that the prison officials 

acted wantonly, with deliberate indifference to the plaintiff’s serious 

needs. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 

 While plaintiff has not received the type of treatment he desires 

(participation in RDAP),a prison inmate, as previously noted, does not 

have a federal constitutional right to rehabilitation. See Moody, 429 

U.S. at 88 n.9 (1976). Moreover, plaintiff does not allege that the prison 

lacked any other drug treatment program. The denial of a particular 

program based upon plaintiff’s criminal history, does not allege “acts or 

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omissions sufficiently harmful to evidence deliberate indifference to 

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). 

Plaintiff’s allegation that his alcoholism is a chronic illness that puts 

him in danger of physical injury also fails to state an Eighth 

Amendment claim. While plaintiff may indeed be suffering from 

alcoholism, he fails to present facts alleging that his lack of access to 

the RDAP has caused him harm. Instead, he offers conclusory 

allegations that the denial violated the Eighth Amendment, which are 

insufficient to state a claim. 

 Finally, Plaintiff asserts claims under the FTCA, which provides 

that the “United States shall be liable... in the same manner and to the 

same extent as a private individual under like circumstances.” 28 

U.S.C. § 2674. A person may sue under the FTCA to recover damages 

from the United States for personal injuries sustained during 

confinement in a federal prison by reason of the negligence of a 

government employee. United States v. Muniz, 374 U.S. 150 (1963). 

The United States is the only proper defendant under the Federal Tort 

Claims Act. Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985). 

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Accordingly, plaintiff may not raise an FTCA claim against defendant 

Tabeling. 

IV. Conclusion

 Plaintiff has failed to state a claim for which relief may be 

granted. Accordingly, the complaint is DISMISSED with prejudice 

pursuant to 42 U.S.C. § 1915(e)(2)(B). 

 Plaintiff’s request to be kept at FCI Milan during the duration of 

this case is DENIED as moot. 

 SO ORDERED. 

Dated: January 6, 2015 s/Judith E. Levy___________ 

Ann Arbor, Michigan JUDITH E. LEVY 

 United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon 

counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 6, 2015. 

 s/Felicia M. Moses__________ 

 FELICIA M. MOSES 

 Case Manager 

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