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Brian Davis, Plaintiff, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

# FILED SEP 212011 cClerk, u.s. District&Bankruptcy

ourts forthe DlstrfctOf

### ColumbIa

v. ) ) ) ) ) ) ) ) ) Civil Action No. 11-1433 (UNA) United States Sentencing Commission, Defendant.
MEMORANDUM OPINION This matter is before the Court on its initial review ofplaintiffs

### pro se complaint and application to proceed 

### informapauperis. The application will be granted and the complaint will be dismissed for lack ofsubject matterjurisdiction. 

### See Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss an action "at any time" it determines that subject matterjurisdiction is wanting). Plaintiffis a prisoner at the McKean Federal Correctional Institution in Bradford, Pennsylvania. He sues the United States Sentencing Commission under the Declaratory Judgment Act, 28 U.S.c. § 2201(a), and

### Bivens v. 

### Six Unknown NamedAgents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffchallenges, on equal protection grounds, the constitutionality ofthe Sentencing Commission's "policy statement barring reliefofrecent guideline changes in crack cocaine sentencing to a specific group of
... offenders
... [and] the ineligibility ofa specific group ofcrack cocaine offenders to benefit from the Fair Sentencing Act
...." Am. Compl. at 1,4-5. The Sentencing Commission is "an independent commission in thejudicial branch ofthe United States." 28 U.S.C. 

### § 991(a). 

### Bivens "recognized for the first time an implied privateaction for damages against federal officers [in their personal capacity] alleged to have violated a citizen's constitutional rights." 

### Correctional Servs. Corp. v. 

### Malesko, 534 U.S. 61, 66 (2001). Under

### Bivens, "it is damages or nothing." 

### Davis v. 

### Passman, 442 U.S. 228, 245 (1979) (citation and internal quotation marks omitted); 

### accordSimpkins v. 

### District of Columbia Government, 108 F.3d 366,369 (D.C. Cir. 1997) 

### ("'Bivens actions are for damages," the payment ofwhich a losing defendant is personally responsible). Plaintiffhas not sued any individuals, and he does not seek monetary damages. Therefore, his purported 

### Bivens claim "constitute[s] the sort ofpatently insubstantial claim[]" that is subject to dismissal for want ofsubject matterjurisdiction. 

### Tooley
v. 

### Napolitano, 586 F.3d 1006, 1010 (D.C. Cir. 2009); 

### see Caldwell v. 

### Kagan, 777 F. Supp.2d 177, 178 (D.D.C. 2011) C"A district court lacks subject matterjurisdiction when the complaint 'is patently insubstantial, presenting no federal question suitable for decision.' ") 

### (quoting Tooley, 586 F.3d at 1009). In addition, the Court lacksjurisdictionto entertain an action for a declaratoryjudgment when, as here, an adequate remedy is available by petitioning the sentencing court for a writ of habeas corpus. 

### Rooney v. 

### Sec'y of Army, 405 F.3d 1029, 1031 (D.C. Cir. 2005) (citing 

### LoBue v. Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996»; 

### see Taylor v. 

### UnitedStates Boardof Parole, 194 F.2d 882, 883 (D.C. Cir. 1952) (attack on the constitutionality ofthe statute under which defendant was sentenced is properly pursued by motion under 28 U.S.C. 

### § 2255). Because plaintiffwas sentenced by the United States District Court for the Northern District ofTexas, Am. CompI. at 5, this Court would lackjurisdiction over his habeas petition. A separate Order of dismissal accompanies this Memorandum Opinion.

Date: September

# LJ-, 2011 2