United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE.
Devon Lee Stephens is a prisoner incarcerated at the United
States Penitentiary - Coleman I in Coleman, Florida.
Proceeding without an attorney, Stephens has filed a
complaint asserting civil rights claims against federal
officials pursuant to the doctrine announced in Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). [R. 1].
Court must conduct a preliminary review of Stephens'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 Stephens'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. 2012).
complaint, Stephens alleges that prison officials at United
States Penitentiary-Big Sandy (“USP-Big Sandy”)
failed to order his transfer to a state holding facility and,
instead, held him in federal custody past his sentence
expiration date of February 16, 2017. [R. 1 at p. 4]. He
alleges violations of his Fourth Amendment right to be free
from unreasonable seizure, his Fifth Amendment due process
rights, and his right to be free from involuntary servitude.
[Id.]. He filed this lawsuit against various USP-Big
Sandy prison officials in their official and individual
capacities. [Id. at p. 5].
the Court must dismiss Stephens's complaint for failure
to state a claim. A 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 Fed.Appx. 155, 157 (6th Cir.
2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
although it appears that Stephens seeks only monetary relief,
to the extent he seeks release from custody, such relief
cannot be obtained through a civil rights action, but must
instead be sought by filing a petition for a writ of habeas
corpus. Preiser v. Rodriguez, 411 U.S. 475, 500
(1973). Thus, to the extent Stephens's complaint could be
construed to seek release from custody, such relief is
unavailable in this Bivens action.
in his complaint, Stephens sues each of the individual
federal employees in both their individual and official
capacities. [R. 1 at p. 2-3] 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 Bureau of Prisons (“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 Fed.Appx. 182, 184 (6th Cir. 2003). The
official capacity claims must therefore be dismissed for lack
of subject matter jurisdiction.
to Stephens's claims against Defendants in their
individual capacities, it is evident from the face of
Stephens's complaint that he has failed to exhaust his
available administrative remedies as is required before a
prisoner may bring a Bivens claim in federal court.
Lavista v. Beeler, 195 F.3d 254, 256 (6th Cir.
1999). “[S]o long as the prison system has an
administrative process that will review a prisoner's
complaint even when the prisoner seeks monetary damages, the
prisoner must exhaust his prison remedies.” Freeman
v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). The
BOP's Inmate Grievance System requires a federal prisoner
to first seek informal resolution of any issue with staff,
and then to institute a formal grievance with the warden
within twenty days. 28 C.F.R. § 542.13, .14(a). If the
prisoner is not satisfied with the warden's response, he
or she must appeal to the appropriate regional office within
twenty days, and if unsatisfied with that response, to the
General Counsel within thirty days thereafter. 28 C.F.R.
§ 542.15(a). See BOP Program Statement 1300.16.
Stephens states that he “filed” a grievance by
“orally [speaking] to Warden Kizziah and Capt. Garza
about release date, ” [R. 1 at p. 10] but indicates
that he did not take any further action to appeal their
decision. Because “[p]roper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules..., ” Woodford v. Ngo, 548
U.S. 81, 90 (2006), Stephens's admitted failure to comply
with the BOP's administrative process establishes that he
failed to properly exhaust his administrative remedies before
filing this lawsuit. Thus, his complaint is subject to
dismissal without prejudice for this reason alone.
even putting this defect aside, Stephens's complaint
fails to state a claim for which relief may be granted.
Stephens's Bivens claim seeks monetary damages
from prison officials for allegedly failing to release
Stephens by his claimed projected release date of February
16, 2017. However, Stephens's claim that, according to
his Sentence Monitoring Computation Data Sheet, his release
date should have been February 16, 2017, does not have merit.
Although the Data Sheet submitted by Stephens states that his
projected “statutory release date” is February
16, 2017, it further indicates that there is a detainer in
place that was lodged by the United States Parole Commission.
[R. 4-1]. In fact, the warrant issued by the United States
Parole Commission (a copy of which Stephens attaches to his
complaint) indicates that Stephens violated the conditions of
a term of supervised release imposed by the Superior Court of
the District of Columbia and directs the prison officials at
USP-Big Sandy to hold Stephens in their custody “until
he is released by order of the Parole Commission, or until
you are authorized to transport him for further
custody.” [R. 1-1]. Thus, to the extent that Stephens
remained in federal custody past February 16, 2017, it was
pursuant to the detainer in place, the validity of which
Stephens has not challenged. Indeed, a review of the Federal
Bureau of Prisons “Inmate Locater” website shows
that Stephens remains in federal custody at USP-Coleman I and
currently has a projected release date of October 29, 2019.
See https://www.bop.gov/inmateloc/ (last
visited February 7, 2018).
of these reasons, Stephens's purported Bivens
claim against the Defendants in their individual capacities
based on their failure to release him from federal custody on
February 16, 2017, has no merit. Therefore, Stephens's
complaint fails to state a claim against any of the named
IT IS ORDERED that:
1. Stephens's complaint [R. 1] is DISMISSED WITH