MEMORANDUM OPINION AND ORDER
Norman David Somerville, who listshis address as 2889 Brookpark Circle, Grove City, Ohio, 43123, has filed a pro se civil rights action under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Somerville has paid the $350.00 filing fee [Record No. 2]. Accordingly, this matter is before the Court for consideration under the authority of Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). Apple v. Glenn authorizes a district court to conduct a limited screening procedure and to dismiss, sua sponte, a fee-paid complaint filed by a non-prisoner if it appears the allegations are"totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion." Id. at 479 (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). Sua sponte dismissal is also appropriate where claims lack "legal plausibility necessary to invoke federal subject matter jurisdiction." Apple v. Glenn, 183 F.3d at 480. Under these circumstances, amendment to cure such defects would not be permitted.
CLAIMS ASSERTED AND RELIEF SOUGHT
Somerville states that he files this Bivens action as a non-prisoner. According to the Federal Bureau of Prisons' ("BOP") website, www.bop.gov, Somerville was released from federal custody on August 10, 2009.*fn1
Somerville's claims arose while he was in the custody of the Federal Bureau of Prisons, specifically, the Federal Medical Center ("FMC") located in Lexington, Kentucky. Officials at FMC-Lexington denied Somerville a 180-day pre-release placement in a Residential Re-entry Community ("RRC") located in North Carolina. The denial was the result of re-evaluating Somerville's eligibility for pre-release under the guidelines of the Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 ("the SCA").
In his Bivens Complaint, Somerville alleges that the decision violated his right to due process of law guaranteed by the Fifth Amendment of the United States Constitution. He further alleges he was denied RRC placement in retaliation for having written a letter to former President George W. Bush. Thus, he claims that the defendants violated his right to freedom of speech guaranteed by the First Amendment of the United States Constitution. Somerville further claims that by denying him RRC placement in North Carolina, the defendants infringed on his First Amendment right to associate with Donald Sullivan, who resides in North Carolina.
Somerville seeks $150,000.00 in compensatory damages from the defendants, jointly and severally; a Declaratory Judgment stating that membership in the Michigan Militia is protected by the First and Second Amendments of the United States Constitution; and attorneys fees (although he is proceeding pro se), court costs and expenses.
For the reasons set forth below, Somerville's Bivens complaint will be dismissed with prejudice because his claims are "totally implausible, attenuated, unsubstantial, frivolous, devoid of merit and no longer open to discussion." Apple, 183 F.3d at 479.
Somerville names the following defendants: (1) Marvin S. Pitt, Housing Unit Manager at FMC-Lexington; (2) Beverly Hoskins, Case Manager at FMC-Lexington; (3) Shamahl Jennings, Counselor at FMC-Lexington; and (4) Stephen Dewalt, former Warden of FMC-Lexington. Somerville sues the defendants in both their individual and official capacities.
SUMMARY OF RELEVANT FACTS
The following is a summary of the allegations contained in Somerville's Complaint and other official sources of which the Court takes judicial notice.
1. Denial of RRC Placement by FMC-Lexington Officials
In May of 2008, over a year prior to his release date, FMC-Lexington officials informed Somerville that he would be recommended for a 180-day pre-release placement in a Residential Re-entry Community ("RRC") located in North Carolina.*fn2
In November of 2008, Marvin Pitt, Somerville's Unit Team Manager at FMC-Lexington, re-evaluated Somerville's eligibility for pre-release under the criteria of the SCA. The SCA , enacted on April 9, 2008, amended 18 U.S.C. § 3624(c) to "authorize the BOP to consider placing an inmate in an RRC for up to the final 12 months of his or her sentence, rather than the final six months that were available pre-amendment." See Montes v. Sanders, 2008 WL 2844494, at *1 (C.D. Cal. July 22, 2008).
Pitt noted that Somerville's Pre-Sentence Investigation Report revealed a criminal history consisting of possession of firearms and ammunition; involvement with the Michigan Militia; and reported hatred of the government. Pitt concluded this history rendered Somerville a "high risk" inmate who should be placed in a Comprehensive Sanction Center ("CSC"), which is designed to meet the needs of higher risk pre-release inmates. Pitt recommended placement in a CSC located in Michigan, not an RRC located in North Carolina [Record No. 2-5, p. 2].
On January 8, 2009, Warden Dewalt upheld Pitt's recommendation [Record No. 5, p.5]. Applying the criteria of the newly enacted SCA, Warden Dewalt determined that RRC placement in North Carolina was not appropriate for Somerville in light of his criminal history, his federal conviction for "Possession of a Machine Gun," his history of access to large amounts of automatic weapons and 1000 rounds of ammunition, and his prior involvement with the Michigan Militia. Warden Dewalt stated that the FMC-Lexington Unit Team had contacted the United States Probation Office in the Western District of Michigan to investigate Somerville's claim that he would be in physical jeopardy from Michigan Militia members if he returned to Michigan. According to Warden Dewalt, Somerville's claim was unsubstantiated.
Warden Dewalt determined that Somerville's placement in a more restrictive CSC located in Michigan was warranted for the protection of the public. The warden's decision was subsequently affirmed by the two higher administrative levels of the BOP.
On February 27, 2009, Somerville filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 in this Court. See Norman David Somerville v. Stephen M. Dewalt et al., Lexington Civil Action No. 5:09-CV-68 (Hon. Karen K. Caldwell, presiding) ("the § 2241 Petition"). Summarized, Somerville argued in the § 2241 Petition that by denying him placement in an unrestricted RRC in North Carolina, Warden Dewalt violated the Ex Post Facto Clause of the United States Constitution, Art. I, § 10, cl.1.
Somerville argued that although he was sentenced in 2005, the prison staff improperly applied the provisions of the SCA to him. Somerville further argued that he should have been excused from pursuing the administrative exhaustion process because it would have been futile. Finally, Somerville sought an emergency Order from this Court which would have directed the BOP to immediately place him in the North Carolina RRC.
B. Dismissal of the § 2241 Petition
On March 11, 2009, the Court entered a Memorandum Opinion and Order ("the § 2241 Opinion and Order") dismissing the § 2241 Petition for Somerville's failure to completely administratively exhaust his claims. [See Mem. Op. & Ord 5:09--CV-68-KKC, Record No.6, pp. 6-8].*fn3 Additionally, the Court denied Somerville's request for emergency injunctive relief, finding that his claim failed to satisfy any of the four criteria used by district courts in determining whether to invoke emergency injunctive relief measures [Id., pp. 8-15].
In particular, the Court concluded Warden Dewalt properly considered Somerville's RRC eligibility under the SCA criteria and that the action did not violate the Ex Post Facto Clause. The Court also noted that although the RRC placement issue remained to be addressed by higher BOP administrative levels, Warden Dewalt's stated reasons for denying Somerville RRC placement appeared to be sound and to comply with the criteria set forth in the SCA
On the issue of emergency injunctive relief, the Court determined that Somerville's likelihood of success of the merits was almost non-existent. The Court explained that: (1) the SCA is more favorable for RRC placement than prior BOP regulations had been, (2) the SCA does not mandate a federal inmate's placement in an RRC, but instead only requires the BOP to consider an inmate for RRC placement, and (3) even if pre-release placement is authorized, it is for no specific period of time, such as 180-days [Id., pp. 8-11].
Citing numerous cases, the Court further noted that the BOP enjoys complete discretion as to prisoner incarceration and classification issues, and that prisoners have no inherent constitutional right to placement in any particular prison (such as an RRC), security classification, or housing assignments [Id., pp. 10-14]. Finally, the Court explained that any constitutional claims for damages had to be asserted in a separate Bivens action [Id., pp. 15-18].
Somerville sought reconsideration of the § 2241 Opinion and Order. On May 1, 2009, the Court denied the motion [See 5:09-CV-68-KKC, Order, Record No. 9].
3. Administrative Exhaustion Activity
A. Administrative Remedy No. 520816
As noted, when Somerville filed the § 2241 Petition, he had begun the administrative remedy process by filing Administrative Remedy No. 520816, which Warden Dewalt denied on January 8, 2009 [Record No. 2-5, p.5]. In that remedy, Somerville had requested that the decision to deny him RRC placement in North Carolina and to place him instead in a Michigan CSC, be rescinded. As explained in the § ...