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Brian Davis, 

Plaintiff, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FILED 

SEP 2 1 2011 

cClerk, u.s. District & Bankruptcy 

ourts for the Dlstrfct Of ColumbIa 

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Civil Action No. 11-1433 (UNA) 

United States Sentencing Commission, 

Defendant. 

MEMORANDUM OPINION 

This matter is before the Court on its initial review of plaintiff s pro se complaint and 

application to proceed in forma pauperis. The application will be granted and the complaint will 

be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the 

court to dismiss an action "at any time" it determines that subject matter jurisdiction is wanting). 

Plaintiff is 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 Named Agents of Federal 

Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff challenges, on equal protection grounds, the 

constitutionality of the Sentencing Commission's "policy statement barring relief of recent 

guideline changes in crack cocaine sentencing to a specific group of ... offenders ... [and] the 

ineligibility of a specific group of crack cocaine offenders to benefit from the Fair Sentencing 

Act .... " Am. Compl. at 1,4-5. 

The Sentencing Commission is "an independent commission in the judicial branch of the 

United States." 28 U.S.C. § 991(a). Bivens "recognized for the first time an implied private 
action 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); accord Simpkins v. District of Columbia Government, 108 

F.3d 366,369 (D.C. Cir. 1997) ("'Bivens actions are for damages," the payment of which a losing 

defendant is personally responsible). Plaintiff has not sued any individuals, and he does not seek 

monetary damages. Therefore, his purported Bivens claim "constitute[ s] the sort of patently 

insubstantial claim[]" that is subject to dismissal for want of subject matter jurisdiction. 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 matter jurisdiction when the complaint 'is 

patently insubstantial, presenting no federal question suitable for decision.' ") (quoting Tooley, 

586 F.3d at 1009). 

In addition, the Court lacks jurisdiction to entertain an action for a declaratory judgment 

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. United States Board of Parole, 

194 F.2d 882, 883 (D.C. Cir. 1952) (attack on the constitutionality of the statute under which 

defendant was sentenced is properly pursued by motion under 28 U.S.C. § 2255). Because 

plaintiff was sentenced by the United States District Court for the Northern District of Texas, 

Am. CompI. at 5, this Court would lack jurisdiction over his habeas petition. A separate Order of 

dismissal accompanies this Memorandum Opinion. 

Date: September LJ-, 2011 

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