IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GARY D. SIMMONS, §

(BOP # 28403-177) §

 § 

 § CIVIL ACTION NO.4:05-CV-296-Y VS. 

§

 §

UNITED STATES OF AMERICA § 

 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 Gary D. Simmons, 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). Simmons’s complaint names the United

States of America as defendant. Simmons contends that even though

he completed 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 record of his prior conviction

for aggravated assault with a deadly weapon. (Compl. ¶¶ 3-6.) He

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. ¶ 8, ¶ 11.) He also contends that

the failure to provide him a sentence reduction caused him to lose

benefits of “early release, guaranteed employment and consortium,”

and “inflicted personal injury.” (Compl. ¶¶ 7-8.) Plaintiff claims

that he is entitled to review of the denial of sentence reduction

 

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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)).

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).

2

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

and he seeks a directive from this Court to correct the actions of

the BOP. (Compl. ¶ 1, ¶ 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

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

 

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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).

3

Simmons’s complaint, the Court concludes that it must be dismissed

under the authority of these provisions.

Plaintiff Simmons 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 defendant only the United States of America. 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 it has consented

to suit by statute.7 Thus, Plaintiff may not maintain his action for

constitutional violations against the United States in this civil

complaint.8 

 

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95 U.S.C.A. § 702 (West 1996). 

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).

4

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 Simmons’s challenge to the denial of a reduction

of sentence for participation in a drug-abuse treatment program is

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. 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

 

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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

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 Gary D. Simmons’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.

 

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