IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

RODNEY C. CHIMNEY, §

(BOP # 31331-077) §

 § 

 § CIVIL ACTION NO.4:05-CV-261-Y VS. 

§

 §

UNITED STATES OF AMERICA, § 

FEDERAL BUREAU OF PRISONS §

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b)(1),

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) 

Plaintiff Rodney C. Chimney, a federal prisoner at the Bureau

of Prisons (“BOP”) FMC–-Fort Worth facility, was permitted by the

magistrate judge to proceed herein pursuant to 28 U.S.C. § 1915,

with the filing fee to be collected as required by the Prison

Litigation Reform Act (PLRA). Chimney initiated this action with a

complaint naming the United States of America and the BOP as

defendants. He has since filed a document entitled “Addendum to

Plaintiff’s Original Complaint” which was docketed as a supplemental complaint with exhibits. The Court has considered both

documents in reviewing Chimney’s claims. 

Chimney complains that the BOP has improperly denied him

placement in a community corrections center (CCC) for up to the

last six months of his sentence, in retaliation for his challenge

to a recommendation from the probation department that he was

completely ineligible for community placement. (Compl. ¶¶ 4-6.) He

contends that he was approved for 90 days’ placement in CCC housing

as provided under 18 U.S.C. § 3624(c), but that such determination

 

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1Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2005). 

2

was then removed as a result of the recommendation. (Compl. ¶ 6.)

Chimney contends that the denial of CCC placement made him

ineligible for receipt of the full sentence-reduction benefits of

the Residential Drug Abuse Treatment Program(“RDAP”) as provided

under 18 U.S.C. § 3621 (e)(2)(B), in violation of his right to due

process and equal protection of the law. (Compl. ¶ 8.) He also

contends that the CCC placement denial caused him to suffer

“numerous personal injuries,” including “loss of guaranteed

employment, loss of consortium and libel/slander” to the extent the

denial implies that “he is a public safety factor and threat to the

community.” (Compl. ¶ 8, ¶ 12.) Plaintiff claims that he is

entitled to review of the denial of CCC placement under the

Administrative Procedure Act (“APA”) 5 U.S.C. § 702-706, and he

contends that he is entitled to relief under 18 U.S.C. § 4042.

(Compl. ¶ 1, ¶13.) He seeks injunctive relief in the form of a

directive from this Court to the BOP to reinstate him to eligibility for CCC placement. (Compl. § Prayer.) 

A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.1 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

 

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2See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2005); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th

Cir. 1990)(discussing authority to dismiss at any time under prior § 1915(d)).

3See 28 U.S.C.A. § 1915A(a)(West Supp. 2005).

4See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

3

should be dismissed.2 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.3 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.4 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”5 After review and consideration of

Chimney’s complaint and supplemental complaint, the Court finds that

his claims must be dismissed under the authority of these provisions.

Plaintiff Chimney invokes the Court’s federal question

jurisdiction under 28 U.S.C. § 1331 by alleging violations of his

constitutional rights, alleging the right to relief under the APA,

and by seeking relief under 18 U.S.C. § 4042. With regard to the

alleged constitutional violations, Plaintiff has named as defendants

only the United States of America and the BOP. Although Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

 

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6See Correctional Services Corp. V. Malesko, 534 U.S. 61, 71-72 (2001)

(“The [federal] prisoner may not bring a Bivens claim against the officer’s

employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual . . .”).

7United States v. Testan, 424 U.S. 392, 399 (1976).

8See generally Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000)(noting that

a petition under 28 U.S.C. § 2241 is the proper vehicle for a prisoner to “attack

the manner in which his sentence is carried out or the prison authorities’

determination of its duration . . .”); Richmond v. Scibana, 387 F.3d 602, 605-606

(7th Cir. 2004)(analyzing the difference between a claim challenging individual

sentence and placement decisions, which must be brought under § 2241, from a

claim challenging the rules to be used by the BOP, which may be pursued under the

APA).

95 U.S.C.A. § 702 (West 1996). 

4

U.S. 388 (1971) authorized a common-law right to recover for alleged

constitutional violations from individual federal officers, no such

remedy lies against the United States. Such claims are barred by the

doctrine of sovereign immunity.6

 The United States may not be sued

except to the extent it has consented to suit by statute.7 Thus,

Plaintiff may not maintain an action for constitutional violations

against the United States or the BOP in this civil complaint.8 

 The Court next turns to whether Plaintiff’s claims for review

of the BOP’s actions under the APA support federal-question

jurisdiction. The APA provides that a person may seek judicial

review for an alleged legal wrong because of federal-agency action,

and as such, qualifies as a waiver of sovereign immunity.9 The APA

also provides an express exception to this waiver such that courts

may not review agency action when “(1) statutes preclude judicial

review; or (2) agency action is committed to agency discretion by

 

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105 U.S.C.A. § 701(a)(1) and (2)(West 1996). 

1118 U.S.C.A. § 3625(West 2000).

12See Richmond, 387 F.3d at 605 (“A placement decision itself is not open

to challenge under the APA . . .”); see also Fristoe v. Thompson, 144 F.3d 627,

630-31 (5th Cir.1998)(noting that although the rule-making activities of the BOP

are reviewable under the APA, § 3625 precludes review the BOP’s substantive

decision in an individual case).

13See generally Lundeen v. Mineta, 291 F.3d 300, 304-05 (5th Cir. 2002)(“If

[5 U.S.C. § 701(a)(1) applies] statutory preclusion of judicial review would be

jurisdictional in effect, requiring dismissal.”) 

5

law.”10 Plaintiff Chimney’s claims for possible CCC placement for

a portion of his imprisonment is provided under 18 U.S.C. § 3624(c),

and his claim to receive consideration for a reduction of sentence

for participation in a drug-abuse treatment program is provided

under 18 U.S.C. § 3621(e)(2)(B). These provisions are grouped with

18 U.S.C. §§ 3622, and 3623-3626 as an “Imprisonment” subchapter of

the “Post-Sentence Administration” Chapter of Title 18 of the United

States Code. Section 3625 expressly provides that the APA “does not

apply to the making of any determination, decision, or order under

this subchapter.”11 This provision has been read to preclude review

under the APA of the BOP’s adjudication of an individual case.12

Because Plaintiff seeks review of the BOP’s application of 18 U.S.C.

§ 3624(c) and 18 U.S.C. § 3621(e)(2)(B) to his particular case, 18

U.S.C. § 3625 precludes jurisdiction under the APA.13

 Plaintiff Chimney also contends that he is entitled to relief

under 18 U.S.C. § 4042. That section provides in relevant part that

the “duties” of the BOP include providing “suitable quarters” and

“for the safekeeping, care, and subsistence of all persons charged

 

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1418 U.S.C.A. § 4042(a)(2)(West 2000).

15See Harper v. Williford, 96 F.3d 1526, 1528 (D.C.Cir.1996); Chinchello

v. Fenton, 805 F.2d 126, 134 (3d Cir.1986); Williams v. United States, 405 F.2d

951, 954 (9th Cir.1969); see also Nwabo v. Hawk-Sawyer, No.03-4184, 2004 WL

950073 (6th Cir. 2004)(unpublished).

16See Inciarte v. Spears, No. 97 Civ. 3155(HB), 1998 WL 190279, at *5

(S.D.N.Y. April 20, 1998).

17This dismissal is without prejudice to Plaintiff’s right to seek, through

a petition for a writ of habeas corpus under 28 U.S.C. § 2241, review of his

sentence or the manner in which his sentence is being determined by BOP

authorities.

6

with or convicted of offenses against the United States.”14 Although

the Fifth Circuit has not ruled on whether this statute creates a

private cause of action, the circuits that have considered the issue

have found that it does not create a private cause of action against

the BOP.15 Consistent with this persuasive authority, this Court

determines that 18 U.S.C. § 4042(a)(2) does not create a private

cause of action, and Plaintiff’s claims thereunder must be dismissed

for lack of subject matter jurisdiction.16

 Therefore, as none of plaintiff Rodney Chimney’s claims in this

action support subject-matter jurisdiction over this civil complaint,

it is DISMISSED WITH PREJUDICE17 pursuant to 28 U.S.C. § 1915A(b)(1)

and, alternatively, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and

(ii). 

 SIGNED September 9, 2005.

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

 

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