IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DEAN A. KNAPP, §

(BOP # 66630-065) §

 § 

 § CIVIL ACTION NO.4:05-CV-313-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 Dean A. Knapp, 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). Knapp’s complaint names as defendants

both the United States of America and the BOP. Knapp contends that

even though he has participated in a Residential Drug Abuse Program

(“RDAP”) as authorized under 18 U.S.C. § 3621(e), the BOP improperly denied him a reduction in sentence, based upon his conviction

under 18 U.S.C. § 922(g)(1). (Compl. ¶¶ 3-6.) Knapp contends that

the denial of sentence reduction under 18 U.S.C. § 3621(e) was in

violation of his rights to due process and equal protection of the

law. (Compl. ¶ 6, ¶ 11.) He also contends that the failure to deem

him eligible for a sentence reduction caused him to lose benefits

of “guaranteed employment and consortium with family.” (Compl. ¶

8.) Plaintiff challenges the BOP’s reliance on its Program

Statement 5330.10 to deem him ineligible for the § 3621(e)

 

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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). 

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)).

2

reduction based upon his § 922(g)(1) offense, even though the BOP

has otherwise acknowledged such a conviction is not a crime of

violence. (Compl. ¶ 9; Exhibits.) Plaintiff also claims that he

will suffer numerous personal injuries as a result of the denial of

eligibility for any ¶ 3621(e) reduction. (Compl. ¶ 12.) He claims

that he is entitled to review of the denial of § 3621(e) sentence

reduction eligibility under the Administrative Procedure Act

(“APA”) 5 U.S.C. § 702-706, and he seeks a directive from this

Court to change his status from ineligible for a § 3621(e) sentence

reduction to eligible. (Compl. ¶¶ 1, 13-14, § 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

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

 

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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).

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 . . .”).

3

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 Knapp’s

complaint, the Court concludes that it must be dismissed under the

authority of these provisions.

Plaintiff Knapp invokes the Court’s federal-question jurisdiction under 28 U.S.C. § 1331 by alleging violations of his constitutional rights and seeking the right to relief under the APA. With

regard to the alleged constitutional violations, Plaintiff has named

as defendants the United States of America and the Bureau of

Prisons. Although Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971) establishes 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

 

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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). 

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

4

it has consented to suit by statute.7 Thus, Plaintiff may not

maintain his 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 committed by a federal agency,

and, as such, it constitutes a waiver of sovereign immunity.9 But

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 law.”10 Plaintiff Knapp’s challenges to the determination that he is ineligible for a reduction of sentence for

participation in a drug-abuse treatment program are provided for by

18 U.S.C. § 3621(e)(2)(B). This provision is grouped with 18 U.S.C.

§§ 3622-3626 as an “Imprisonment” subchapter of the “Post-Sentence

Administration” Chapter of Title 18 of the United States Code.

 

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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.”) 

14This 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.

5

Section 3625 expressly stipulates 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. §

3621(e)(2)(B) to his particular case, 18 U.S.C. § 3625 precludes

jurisdiction under the APA.13

 Therefore, as none of plaintiff Dean A. Knapp’s claims in this

action support subject-matter jurisdiction over this civil complaint,

it is DISMISSED WITH PREJUDICE14 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 13, 2005.

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

 

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