United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINON & ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE.
Lionel Vincent Heard is incarcerated at the Federal Medical
Center (“FMC”) - Lexington located in Lexington,
Kentucky. Proceeding without an attorney, Heard has filed a
civil rights action pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 1]
Court must conduct a preliminary review of Heard's
complaint because he has been granted permission to pay the
filing fee in installments and because he asserts claims
against government officials. 28 U.S.C. §§
1915(e)(2), 1915A. A district court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Heard's complaint, the Court
affords it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
initial matter, the complaint filed by Heard is quite
difficult to follow. The “complaint” consists of
a form complaint of unknown origin (it is not the form
approved for use by this Court), followed by pages of
narrative allegations into which various attachments,
print-outs, isolated quotes from legal treatises, and other
exhibits are randomly inserted. The result is a disjointed,
confusing pleading that is very difficult to understand.
notwithstanding the confusing presentation of Heard's
claims, the gist of Heard's complaint appears to be that
prison officials at FMC-Lexington wrongfully denied Heard
placement in a Residential Re-Entry Center (RRC), also known
as a halfway house, despite his near completion of the Bureau
of Prison's (BOP's) Residential Drug Abuse Program
(RDAP). [Id. at p. 4-5]. According to
Heard, while nearing completion of the RDAP, he was referred
to Dr. Stenson and “Medical Dr. Dankwa” for RRC
placement; however, on November 6, 2015, Heard's Unit
Team received documentation from “Dr. Harvey of the
Regional Clinic Consultant (CSA) Central Sector
Administrator, ” who had determined that Heard was not
appropriate for RRC placement due to his current medical
condition. [Id. at p. 5].
it is not entirely clear, Heard appears to be claiming that
officials at FMC-Lexington acted fraudulently by permitting
him to participate in the RDAP, notwithstanding the fact that
he may not actually earn a year off of his sentence because
of medical issues. He further suggests that prison officials
were incentivized to enroll more prisoners in the RDAP
because of “bad faith quotas” and that the
“fraudulent” coercion of inmates to participate
in the RDAP, even though these inmates may not be eligible
for a sentence reduction because of medical concerns,
constitutes cruel and unusual punishment in violation of the
Eighth Amendment. [Id. at 14]. He also appears to
suggest that prison officials violated his Fifth Amendment
due process rights by removing him from the RDAP and
preventing him from being eligible for a sentence reduction.
In addition, he claims that the BOP's failure to respond
to his administrative grievances violated his Fifth Amendment
due process rights. [Id. at 14-15].
complaint must set forth sufficient allegations to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court has an obligation to liberally construe a
complaint filed by a person proceeding without counsel, but
it has no authority to create arguments or claims that the
plaintiff has not made. Coleman v. Shoney's,
Inc., 79 F. App'x 155, 157 (6th Cir. 2003)
(“Pro se parties must still brief the issues advanced
with some effort at developed argumentation.”).
Applying these standards, the Court must dismiss Heard's
complaint for failure to state a claim.
to the extent that Heard seeks to sue Defendants in their
official capacities, his claims fail. A suit against a
government employee in his or her “official
capacity” is not, as one might suppose, a suit against
the employee for his or her conduct while performing job
duties for the government. It is, in fact, a suit against the
government agency that employs the individual. Thus, an
official capacity suit against a BOP employee is a suit
against the BOP, which is a federal agency. While
Bivens authorizes suits against federal employees
for violations of civil rights, it does not waive the
sovereign immunity enjoyed by the United States and its
agencies. Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 370 (6th Cir. 2011)
(Bivens claims may be asserted against federal
officials only in their individual capacities); Okoro v.
Scibana, 63 F. App'x 182, 184 (6th Cir. 2003).
claims against Defendants in their individual capacities fare
no better. While Bivens expressly validated the
availability of a claim for damages against a federal
official in his or her individual capacity, an officer is
only responsible for his or her own conduct.
Ashcroft, 556 U.S. at 676-677. See also Ziglar
v. Abbasi, 137 S.Ct. 1843, 1860 (2017). Thus, in order
to recover against a given defendant in a Bivens
action, the plaintiff “must allege that the defendant
[was] personally involved in the alleged deprivation of
federal rights.” Nwaebo v. Hawk-Sawyer, 83 F.
App'x 85, 86 (6th Cir. 2003) (citing Rizzo v.
Goode, 423 U.S. 362, 373-77 (1976)).
Heard does not allege that Defendants Francisco Quintana
(Warden of FMC-Lexington), J.F. Caraway (BOP Regional
Director), Ian Connors (Administrator in BOP's Central
Counsel's Office) or “Ms. Chaney” (Anteas
Unit Counselor at FMC-Lexington) were personally involved in
the decision to deny Heard placement in an RRC due to his
medical condition. At most, he suggests that they failed to
adequately respond to Heard's administrative grievances
filed with the BOP with respect to his participation in the
RDAP and the denial of his placement in an RRC. However,
Bivens liability may not be imposed simply because a
supervisor denied an administrative grievance or failed to
act based upon information contained in a grievance.
Nwaebo v. Hawk-Sawyer, 100 F. App'x 367, 369
(6th Cir. 2004)(citing Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir.1999)).
respect to Quintana, Heard also suggests that, as Warden, he
is responsible for the conduct of his employees, such that,
if there were problems with the administration of the RDAP
program at FMC-Lexington, Quintana should ultimately be
responsible. However, such a claim seeks to impose liability
upon Quintana for his employees' conduct, a form of
sweeping supervisory liability which is unavailable in a
Bivens action: “[i]n a § 1983 suit or a
Bivens action - where masters do not answer for the
torts of their servants - the term ‘supervisory
liability' is a misnomer.” Ashcroft, 556
U.S. at 677 (2009). See also Ziglar, 137 S.Ct. at
1860. Thus, Heard fails to state a claim against Quintana for
which relief may be granted.
Heard's complaint as broadly as possible, his last
remaining claim seeks to impose liability against Dr. Stenson
in his individual capacity for his failure to place him in an
RRC. First, it is not clear from the allegations of
Heard's complaint the involvement, if any, of Dr. Stenson
in making the determination that Heard should not be placed
in an RRC because of his medical condition. However, even if
Dr. Stenson had been involved in this decision, the BOP's
determinations regarding halfway house placement are
expressly insulated from judicial review under the APA. 18
U.S.C. § 3625 (“The provisions of sections 554 and
555 and 701 through 706 of title 5, United States Code, do
not apply to the making of any determination, decision, or
order under this subchapter.”). Cf. Woodard v.
Quintana, No. 5:15-307-KKC, 2015 WL 7185478, at *5-6
(E.D. Ky. Nov. 13, 2015). “When a court sentences a
federal offender, the BOP has plenary control, subject to
statutory constraints, over ‘the place of the
prisoner's imprisonment, ' and the treatment programs
(if any) in which he may participate.” Tapia v.
United States, 564 U.S. 319, 331 (2011)(citing 18 U.S.C.
§§ 3621(b), (e), (f); 3624(f); 28 C.F.R. pt. 544