UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

___________________________________ ) RICARD O BORNALES , III, ) ) P laintif f, ) ) v. ) Civil Action No. 09-1973 (ESH) ) HARLEY G. LAP P IN et al., ) ) Defendan ts. )

___________________________________ )
MEMORAN DUM OP INION Plaintiff Ricardo B ornale s, I I Ihas filed a complaint alleg ing that the transfe r policies of the Fe dera l Bure au of Prisons (“ BO P”) violates his Fifth Ame ndment right to equal protec tion. The de fenda

nts have filed a

motion under Fe dera l Rule of Civil Procedur e 12(b) (6) to dismiss the complaint or, in the alter

native, under

Rule 56 for summary

judgme nt, for fa ilure to state a c laim upon which re lief may

be grante d. The motion will be grante d and the c omplaint will be dismiss ed. BACK GR OUND Bor nales is a Phillipine national who, at the time of his ar rest, wa s lawfully

in the United States as a pe rmane nt resident alien, livingin northern Califor nia with his wife and f

our childre n, all of whom ar e United States c itiz ens. Compl. ¶¶ 3-4, 33-34. Convicte d in 2006 on drug traff icking , money

laundering, a

nd related cha

rg es, he is now se rvinga 262-month sentenc e of confine ment. Id. ¶ 2. The B urea u of Immigration and Customs Enforc ement (“ I CE”) ha s lodge da deta iner a g ainst his relea se, and doe s not intend to investigate or adjudicate his imm igr ation status until he has been r elea sed fr om BOP custody and tra nsfer red to I CE custody
. Id. ¶ 37. Currently confine d in a B OP fac ility in Kentucky , Bor

nales see ks an orde r fr om this Court directingthe B OP to consider him for a transfe r to a prison c loser to his nuclea r and extended family

in northern Califor

nia. Id . ¶¶ 35- 36, 41. He ha s asked the B OP to consider such a tra nsfer
. Id. ¶¶ 26, 28. “ In all instances B ornale s has bee n informed that the f irst step in transfe rringhim to another prison will be a r ecommendation by his Unit Team to do so.” Id. ¶ 29. The B OP makes “N ear er Rele ase Tr ansfe rs” ( “NRT”) , which ar e designed to “move the inmate closer

to [ his] leg al re sidence or re lease destination, consistent with [ his] security level.” Id., Ex . A at 10 (e x cer

pting a portion of B OP Progr am Statement 5100.08). A prisoner with “a n Orde r for Depor tation, an Orde r of Remova l, an I CE detainer for una djudicated of

fense s or an I CE detainer

for a hearing” is ex pressly

excluded from conside ration for an NRT program transfe r. Id. To date, the “B OP has ref used to consider

Bor nales for designation to a prison fac ility closer to nor

thern California

beca use B ornale s is the subject of an I CE detainer . The BO P cites its poli cy

expressed in PS 5100.08 which ex empts the subjects of I CE detainer s from transfe rs to place them near er to the projected point of r elea se fr om BOP custody .” Id. ¶ 38. Bor nales a lleg es that the B OP also makes extra-NRT tra nsfer s, that is, transfer s that are not part of the N RT program, to locate prisoner s closer to their f amilies, and alleg es that he knows of at lea st two such transfe rs of U.S. citizens in the past year . Compl. ¶ 39. (ref erring to “exceptions” to the B OP’s NRT program). B ornale s does not identify any specific transfe r

- 2 -program other than the NRT, and he does not identify any express or ac tual exclusion from consideration to any

other tra nsfer program. DISCUSSIO N A cour t may dismiss a complaint if it fails “to state a claim upon which r elief c an be g rante d.” F ed. R. Civ. P. 12(b)(6). A c omplaint requires only “a shor t and plain statement of the claim showingthat the pleade r is entitled to relief, in or der to g ive the def endant f air notice of what the . . . c laim is and the grounds upon which it re sts.” Bell Atlantic Corp. v. Tw ombly, 550 U.S. 544, 555 (2007) (inter nal quotation marks and c itations omi tted). I n deter mining whe ther a complaint fails to state a c laim upon which re lief may be grante d, g ener ally

a cour t “must acc ept as true a ll of the fac tual alleg ations contained in the c omplaint,” Erickson v . Pardus , 551 U.S. 89 (2007), a nd “grant plaintiffs the be nefit of a ll inferenc es that ca n be derived from the f

acts alleg ed,” Kowal v. MCI Communications Corp. , 16 F.3d 1271, 1276 ( D.C. Cir. 1994). A cour t need not a ccept a plaintiff’s leg al conc lusions or infere nces dr awn by the plaintiff if those infere nces a

re unsuppor

ted by fac ts alleg ed in the complaint. Id. at 1276. Moreove r, “a plaintiff’s oblig ation to provide the ‘grounds’ of his ‘e ntitle[ ment] t o relief ’ re quires more than labels and c onclusions.” Bell Atlantic Corp. v. Tw ombly , 550 U.S. at 555 (quotingFe d. R. Civ. P. 8(a)( 2).). It require s a “showing ” and not just a blanke t assertion of a right to relief. Id. at 555 n. 3. In short, a complaint fa ils “if it tenders nake d asser tions devoid of further

fac tual enhanc ements.” Ashcroft v. Iqbal , --- U.S. ---- , 129 S.Ct . 1937, 1949 (2009) ( internal quotation marks and a lterations omitted). In decidinga Rule 12(b) (6) motion, a cour t may consider only

“the f acts a lleg ed in the complaint, documents attac hed as e x hibits or incorporate d by ref ere nce in the c omplaint, and
- 3 -matters about whic h the Court may take judicial notice .” Gustave- Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) ( citation omitted). “[W ]here a doc ument is refe rre d to in the complaint and is ce ntral to plaintiff’s c laim, such a doc ument attache d to the motion papers may be conside red w ithout convertingthe motion to one for summary judgme nt.” Vanove r v. Hantman, 77 F. Supp. 2d 91, 98 (D.D .C. 1999), aff’d , 38 F. App’ x 4 (D.C.Cir.2002) (c iting Gree nberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 ( 6th Cir.1999)). In rea chingits decision on this mot ion, the Court did not consider any evidenc e submitted outside the pleading s and, there fore , the motion to dis miss will not be conve rted to one f or summary

judgme nt. 1 On its face , Bor

nales’ c omplaint fails to state a cla im upon which relief may be grante d. Wit hout disputi ngthat he is inelig ible for a n NRT transfe r, he c ontends that he is cha lleng ing discrimination with respec t to ex tra-N RT transfe rs. “The . . . BO P has decide d that beca use Bor nales’ immig ration status makes him inelig ible for a transfe r nea

rer to his pointof re lease from B OP custody , . . . Bor nales is automatica lly

ineligible f

or consider ation for a

ny other ty pe of transf er that would place him close r to his family in California.” Pl.’s Opp. at 1. Borna les contends that, “ the B OP’s decision denie s him equal protec tion of [t he] law bec ause a prisoner who is a United States citizen who will not be rele ased f rom BO P custody

into a community would nonetheless be considere d for a transfe r nea

rer to his family .” Id . at 3. These conclusory

The B OP submit ted a de clar ation with its m otion to dis miss. That declar ation, 1 howeve r, re lates only

to the issue of whe ther B ornale s exhausted all available a dminist rative reme dies, an a

rgument the def

endants made in their motion to di smiss. I t is not necessar y to rea ch the issue of

exhaustion i n order

to addre ss the merits of the unde rlying c laim. 42 U.S.C. § 1997e(c )(2) ; W

oodford v. Ngo, 548 U.S. 81, 101 (2006) (notingthat a district cour t may “dismiss plainly

meritless claims without first addre ssing wha t may be a muc h more c omplex question, namely , whether the prisoner

did in fact prope rly

exhaust available a dminist rative reme dies.”). T he Court expressly does not rea ch the e x haustion issue in this case.

- 4 -statements ar e unsupported by any fac tual alleg ations in the complaint. There are no fac tual alleg ations to support an infer ence that the B OP has an e x tra-N RT program to move inmates closer to their

families, or that a

prisoner who is a United States citizen would be consider ed for a transfe r nea

rer to his family

wher eas prisoners with I CE detainer s would be dee med inelig ible for the same sor

t of transfe r. F urthermor e, ther e is no fac tual basis in the complaint for infe rringthat Bor nales ha s not been or w ill not be considered f or any extra-NRT transf

er, or that he has be en or will be deeme d ineligible f or an e x tra-N RT transfe r bec ause of his I CE detainer
. There can be no doubt that the BO P transfer s prisoners for any of a va riety of administrative re asons. Ther e is also no doubt that Bor nales doe s not have a

constitutional right to be transf

err ed to a f

acility closer to his family
. Meac hum v. Fano, 427 U.S. 215, 225 (1976) (holdingthat an inmate doe s not ordinarily have a constitutionally

protec ted liberty

interest in his assig nment to a par

ticular prison). T o be sure , prison policies that discriminate on the ba sis of national orig in are subject to strict scrutiny
. Franklin v. Barry , 909 F. Supp. 21, 24 (D.D .C. 1995). F urthermor e, prison policies that discr iminate on the basis of I CE detainer s must be justified by

some rational r elationship to a leg itimate gove rnmental purpose
. McLean v

. Crabtree, 173 F.3d 1176, 1186 ( 9th Cir. 1999) (“B eca use ‘prisoners with detaine rs’ doe s not constitute a suspec t class, the deta iner e x clusion is valid so long as it survives the r ational basis test . . . .”). B ornale s, howeve r, has not alleg ed fa cts that yield a re asonable infere nce that there is a prison policy

or program that supports close r-to-f amily extra-NRT transf

ers, or that Bor nales has bee n denied suc h a tra nsfer either be cause of his national orig in or bec ause of his I CE detainer . There fore , the complaint will be dismissed without prejudice for failure to state a c laim upon which re lief may

be grante d.
- 5 -A sepa rate order acc ompanies this memorandum opinion.

/s/ EL L EN SEGAL

HUVEL L E United States District J udg e DATE: May

25, 2010

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