IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

EDWARD RAY LEE §

#14857-040 §

§

V. § A-20-CV-429-RP

§

DIRECTOR OF BOP, §

et al. §

ORDER

Before the Court is Plaintiff Edward Ray Lee’s Complaint (Document 1). Plaintiff,

proceeding pro se, has been granted leave to proceed in forma pauperis. After consideration of the

complaint, it is dismissed.

 STATEMENT OF THE CASE

Although Plaintiff titles his Complaint “Bivens Action,” Plaintiff asserts he is entitled to

relief under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Agents of Fed. 1

Bureau of Narcotics and Dangerous Drugs, 403 U.S. 388 (1971). Plaintiff names as defendants the

Director of the Bureau of Prisons (BOP), the Deputy Director of the BOP, and FCI Bastrop’s

Warden, Assistant Warden, Camp Administrator, Camp Unit Manager, and Camp Case Manager. 

Plaintiff contends the defendants are in violation of the Coronavirus Aid, Relief, and

Economic Security Act (CARES Act) protocol set forth in Attorney General Barr’s Memorandum 2

for Director of Bureau of Prisons. Plaintiff asserts he has medical vulnerabilities related to COVID28 U.S.C. § 1346(b), 2671, et seq.

1

Pub. L. No. 116-136, 134 Stat. 281 (2020). 2

1

Case 1:20-cv-00429-RP Document 8 Filed 10/28/20 Page 1 of 6
19 and he should be reviewed for home confinement before other inmates. He contends the

defendants are negligent in following the Attorney General’s directive and have violated his Eighth

Amendment right prohibiting cruel and unusual punishment and his Fourteenth Amendment right

to equal protection. He seeks $5 million in damages, $2 million for intentional infliction of

emotional distress, and $250,000 in attorney’s fees. In addition, he requests the Court to reprimand

the defendants pursuant to the BOP’s Standards of Employee Conduct or immediately transfer

Plaintiff to home confinement pursuant to the CARES Act. 

 DISCUSSION AND ANALYSIS

A. Standard Under 28 U.S.C. § 1915(e)

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e).

On review, the court must dismiss the complaint, or any portion of the complaint, if the complaint

is frivolous, malicious, or 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 Martin v. Scott, 156 F.3d 578 (5th Cir.

1998). 

When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as

liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the plaintiff’s pro se status

does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog

the judicial machinery with meritless litigation and abuse already overloaded court dockets.”

Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). 

B. FTCA

To the extent Plaintiff is attempting to bring a claim pursuant to the FTCA the claim is barred

by sovereign immunity. The FTCA is a limited waiver of the United States’s sovereign immunity

2

Case 1:20-cv-00429-RP Document 8 Filed 10/28/20 Page 2 of 6
allowing “civil actions for damages against the United States for personal injury or death caused by

the negligence of a government employee under circumstances in which a private person would be

liable under the law of the state in which the negligent act or omission occurred.” Hannah v. United

States, 523 F.3d 597, 601 (5th Cir. 2008). Under the FTCA, “[a]n action shall not be instituted upon

a claim against the United States ... unless the claimant shall have first presented the claim to the

appropriate Federal agency and his claim shall have been finally denied by the agency in writing.”

28 U.S.C. § 2675(a). This “requirement is a prerequisite to suit under the FTCA.” Life Partners Inc.

v. United States, 650 F.3d 1026, 1030 (5th Cir. 2011). “Exhaustion of administrative remedies is

a jurisdictional prerequisite to suit under the Tort Claims Act, and absent compliance with the

statute’s requirement [a] district court [is] without jurisdiction.” McAfee v. 5th Circuit Judges, 884

F.2d 221, 223-23 (5th Cir. 1989). 

Plaintiff did not name as a defendant the United States of America, the only proper defendant

under the FTCA. Instead, Plaintiff sues employees of the BOP. Allowing Plaintiff to amend his

complaint to name the United States as a defendant would be futile, however. Plaintiff fails to allege

that he filed an administrative claim regarding his FTCA claims. Because Plaintiff fails to show he

exhausted his administrative remedies under the FTCA prior to filing his complaint, the Court is

without jurisdiction over such action. 

C. Bivens

Plaintiff also relies on Bivens to raise his claims. The Court assumes without deciding that

Bivens may be extended to Plaintiff’s constitutional claims. See Melot v. Bergami, 970 F.3d 596,

599 (5th Cir. 2020) (construing petitioner’s section 2241 petition challenging denial of prisoner’s

participation in Elderly Offender Home Detention Program as asserting a Bivens civil-rights claim).

3

Case 1:20-cv-00429-RP Document 8 Filed 10/28/20 Page 3 of 6
1. Cruel and Unusual Punishment

Plaintiff acknowledges Attorney General Barr’s memorandum to the Director of the BOP

listed the factors BOP personnel should consider when assessing which inmates should be granted

home confinement under the CARES Act. Those factors are (1) age and vulnerability of the inmate

to COVID-19, (2) the security level of the facility currently holding the inmate, with priority given

to inmates residing in low and minimum security facilities, (3) the inmate’s conduct in prison, with

inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP

violation within the last year not receiving priority treatment under the Memorandum, (4) the

inmate’s score under PATTERN, with inmates who have anything above a minimum score not

receiving priority treatment under the Memorandum, (5) whether the inmate has a demonstrated a

verifiable re-entry plan that will prevent recidivism and maximize public safety, including

verification that the conditions under which the inmate would be confined upon release would

present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility,

and (6) the inmate’s crime of conviction, and assessment of the danger posed by the inmate to the

community.

Regarding the Eighth Amendment in the COVID-19 context the Fifth Circuit recently

explained:

The Eighth Amendment requires prison officials to provide “humane conditions of

confinement” with due regard for inmate health and safety. Farmer v. Brennan, 511

U.S. 825, 832, 837 (1994). To show a violation, inmates must prove that they were

exposed “to a substantial risk of serious harm” and “that prison officials acted or

failed to act with deliberate indifference to that risk.” Carlucci v. Chapa, 884 F.3d

534, 538 (5th Cir. 2018) (quoting Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir.

2006)). The presence of a substantial risk is an objective inquiry. Petzold v.

Rostollan, 946 F.3d 242, 249 (5th Cir. 2019). Deliberate indifference, however, is

subjective; it requires a showing that prison officials had actual knowledge of a risk

4

Case 1:20-cv-00429-RP Document 8 Filed 10/28/20 Page 4 of 6
and disregarded it. Id. Knowledge may be inferred from the circumstances,

particularly where the risk is obvious. Hope v. Pelzer, 536 U.S. 730, 738 (2002). In

addition, an inmate must “submit evidence that prison officials refused to treat him,

ignored his complaints, intentionally treated him incorrectly, or engaged in any

similar conduct that would clearly evince a wanton disregard for any serious medical

needs.”Gobert, 463 F.3d at 346 (internal quotation omitted). “Deliberate indifference

is an extremely high standard to meet.” Domino v. TDCJ, 239 F.3d 752, 756 (5th Cir.

2001).

Valentine v. Collier, No. 20-20525, 2020 WL 6039993, at *5 (5th Cir. Oct. 13, 2020).

The Eighth Amendment does not mandate perfect implementation of the CARES Act. 

Simply because Plaintiff was not first in line when BOP officials began to consider inmates for home

confinement under the CARES Act does not mean their actions were deliberately indifferent. 

Accordingly, Plaintiff fails to sufficiently allege that the defendants violated his Eighth Amendment

right prohibiting cruel and unusual punishment.

2. Equal Protection

To establish an equal-protection violation, a plaintiff “must prove purposeful discrimination

resulting in a discriminatory effect among persons similarly situated,” Muhammad v. Lynaugh, 966

F.2d 901, 903 (5th Cir. 1992), or that he “has been intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment,” Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). 

Plaintiff makes no such allegation and instead contends he and other inmates with medical

issues should be considered for home confinement before other inmates. Plaintiff’s allegations do

not show he has been treated differently than persons similarly situated. Rather, his allegations

indicate he is being treated the same as other inmates with medical issues. Accordingly, Plaintiff

fails to sufficiently allege that the defendants violated his right to equal protection. 

5

Case 1:20-cv-00429-RP Document 8 Filed 10/28/20 Page 5 of 6
D. CARES Act

To the extent Plaintiff seeks release to home confinement pursuant to the CARES Act the

Court is without jurisdiction to act. The CARES Act places decision making authority solely within

the discretion of the Attorney General and the Director of the Bureau of Prisons. See CARES Act,

Pub. L. No. 116-136, § 12003, 134 Stat. 281, 515–17 (2020). Plaintiff may instead file in the court

of his conviction a motion for compassionate release after he has exhausted his administrative

remedies. See 18 U.S.C. § 3582(c)(1)(A). 

CONCLUSION

The Court lacks jurisdiction over Plaintiff’s complaint to the extent Plaintiff is raising his

claims pursuant to the FTCA or the CARES Act. To the extent Plaintiff raises his claims pursuant

to Bivens he fails to allege a valid violation of his constitutional rights. 

It is therefore ORDERED that Plaintiff’s complaint is DISMISSED WITHOUT

PREJUDICE IN PARTfor want ofjurisdiction and DISMISSED WITH PREJUDICE IN PART

for failure to state a claim upon which relief can be granted.

SIGNED on October 28, 2020.

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

6

Case 1:20-cv-00429-RP Document 8 Filed 10/28/20 Page 6 of 6