United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
Andrew Johnston is an inmate currently confined at the
Federal Medical Center (“FMC”) Lexington in
Lexington, Kentucky. Proceeding without an attorney, Johnston
has filed a civil rights action pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
(Doc. #1), and a Motion to Proceed In Forma
Pauperis, (Doc. #4). The information contained in
Johnston's fee Motion indicates that he lacks sufficient
assets or income to pay the $350.00 filing fee. Because
Johnston will be granted pauper status in this proceeding,
the $50.00 administrative fee is waived. District Court
Miscellaneous Fee Schedule, § 14.
Court must conduct a preliminary review of Johnston's
Complaint because he has been granted pauper status. 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. McGore v. Wrigglesworth, 114 F.3d 601,
607-08 (6th Cir. 1997). The Court evaluates Johnston's
Complaint under a more lenient standard because he is not
represented by an attorney. Erickson v. Pardus, 551
U.S. 89, 94 (2007). At this stage, the Court accepts the
plaintiff's factual allegations as true. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
nature of Johnston's Complaint makes it difficult to
understand, as he purports to incorporate by reference claims
that he made in a habeas petition filed in another case. (Doc
#1 at 1). Proceeding in such a manner runs afoul of Federal
Rule of Civil Procedure 8 because piecemeal complaints filed
as separate documents in separate cases necessarily do not
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ” nor
are they made up of allegations that are “simple,
concise, and direct.” Fed.R.Civ.P. 8(a)(2), (d)(1).
See also Laster v. Pramstaller, No. 08-CV-10898,
2008 WL 1901250, at *2 (E.D. Mich. April 25, 2008) (quoting
Windsor c. Co. Dep't of Corr., 9 Fed.Appx. 967,
968 (10th Cir. 2001)) (“Neither the Court nor
Defendants are obligated to search through the Complaint and
its voluminous exhibits in order to glean a clear and
succinct statement of each claim for relief. It is
Plaintiffs' responsibility to edit and organize their
claims and supporting allegations into a manageable
from what the Court is able to ascertain from the Complaint
filed in this case, Johnston essentially challenges his
security classification and prison designation decision made
by the Bureau of Prisons (“BOP”). (Doc. # 1).
Specifically, he claims that, he was
“trans-segged” from the Special Housing Unit
(“SHU”) at United States Penitentiary
(“USP”) Big Sandy to FMC Lexington's SHU on
October 19, 2019, while he was waiting re-designation to a
prison other than USP Big Sandy. Id. According to
Johnston, due to his cooperation in his criminal case, he
requires placement in protective custody. Id. In
addition, he claims that his custody points are supposed to
be at 22 (which designates him for a medium-security prison)
rather than 26 (which designates him for a maximum-security
prison). Id. Even so, he claims that his
high-profile and “highly-publicized” cooperation
should qualify him for a “management variable, ”
which would allow that BOP to designate him at a different
security level. Id. However, Johnston claims that he
has learned from FMC staff that he has been designated to be
transferred to a “USP in this region, ” where
Johnston believes he will be targeted with immediate violence
even in the SHU. Id. He claims that this is in
violation of his constitutional due process and equal
protection rights, as well as 5 U.S.C. §§ 702(2)(A)
and 706(1), the United States Marshal Service WITSEC
procedures, and state tort law. Id.
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),
and the Court must dismiss a prisoner's complaint that
fails to do so, Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). The Court's obligation to liberally
construe pro se pleadings does not extend so far as
to require it to conjure unpled facts or create claims for
the plaintiff. Moorman v. Herrington, No.
4:08-cv-P127-M, 2009 WL 2020669, at *1 (W.D. Ky. July 9,
2009) (citations omitted). The Court has thoroughly reviewed
Johnston's Complaint and concludes that it must be
to the extent that Johnston alleges constitutional claims,
those claims may only be pursued pursuant to the doctrine of
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971), which held that an individual may
“recover money damages for any injuries . . . suffered
as a result of [federal] agents' violation of” his
constitutional rights. 403 U.S. at 397. However, the only
Defendant named in Johnston's Complaint is the Director
of the BOP. Johnston may not bring these claims against the
BOP Director in his official capacity, as a suit against a
government employee in his or her “official
capacity” is not a suit against the employee but is
instead a suit against the government agency that employs the
individual. Mitchell v. Chapman, 343 F.3d 811, 822
(6th Cir. 2003) (citing Kentucky v. Graham, 473 U.S.
159 (1985); Monell v. Dept. of Social Servs., 436
U.S. 658, 690 n. 55 (1978)). Thus, an official capacity suit
against the BOP Director 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).
he bring his claim against the BOP Director in his individual
capacity, absent an allegation that the BOP Director was
“personally involved in the alleged deprivation of
federal rights.” Nwaebo v. Hawk-Sawyer, 83
Fed.Appx. 85, 86 (6th Cir. 2003) (citing Rizzo v.
Goode, 423 U.S. 362, 373-77 (1976)). 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. Iqbal, 556 U.S. at 676- 77.
See also Ziglar v. Abbasi, 137 S.Ct. 1843, 1860
(2017). The mere fact of supervisory capacity is not enough;
respondeat superior is not an available theory of liability.
Iqbal, 556 U.S. at 677. “Even a pro se
prisoner must link his allegations to material facts . . .
and indicate what each defendant did to violate his
rights.” Sampson v. Garrett, 917 F.3d 880, 882
(6th Cir. 2019) (citing Hill v. Lappin, 630 F.3d
468, 471 (6th Cir. 2010); Lanman v. Hinson,
529 F.3d 673, 684 (6th Cir. 2008)). Johnston's Complaint
fails to comply with these requirements with respect to his
claims against the Director of the BOP.
Johnston's claims are solely based upon his security
classification and prison designation. However, “[w]hen
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. pts. 544, 550 subpart F (2010)). An
inmate has no liberty interest in being placed in any
particular penal institution, Olim v. Wakinekona,
461 U.S. 238, 249 (1983), or classified at any particular
security level, see Harris v. Truesdell, 79
Fed.Appx. 759, 759 (6th Cir. 2003) (citing Moody v.
Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v.
Fano, 427 U.S. 215, 224 (1976)), and hence no rights
protected by the Due Process Clause in that regard.
Sandin, 515 U.S. at 484-86. See also Wilkinson
v. Austin, 545 U.S. 209, 221 (2005) (“[T]he
Constitution itself does not give rise to a liberty interest
in avoiding transfer to more adverse conditions of
confinement.”) (citing Meachum, 427 U.S. at
225); Moody, 429 U.S. at 88 n.9 (“Congress has
given federal prison officials full discretion to control
[prisoner classification and eligibility for rehabilitative
programs in the federal system], 18 U.S.C. § 4081, and
petitioner has no legitimate statutory or constitutional
entitlement sufficient to invoke due process.”).
Indeed, the BOP's decisions regarding where to house a
particular inmate pursuant to 18 U.S.C. § 3621(b) are
expressly insulated from judicial review under the
Administrative Procedure Act (“APA”). 18 U.S.C.
to the extent that Johnston bases his claims on the alleged
violations of unspecified BOP and/or United States Marshal
Service policies and procedures, these policies and
procedures are not “laws” which may be broken.
Rather, they are merely internal agency guidelines, and they
are not promulgated in compliance with the APA. Reno v.
Koray, 515 U.S. 50, 61 (1995). Accordingly, they do not
carry the force of law and do not create substantive rights
that may be enforced by any person. See Schweiker v.
Hansen, 450 U.S. 785, 789 (1981); United States v.
Craveiro, 907 F.2d 260, 264 (1st Cir. 1990). Because a
federal employee's failure to adhere to an internal
policy or procedure does not constitute a violation of
federal law, any “claim” under such policy or
procedure fails as a matter of law. United States v.
Loughner, 782 F.Supp.2d 829, 831-32 (D. Ariz. 2011);
Callahan v. Patton, No. 07-CV-54-JMH, 2007 WL
1662695, at *5 (E.D. Ky. June 4, 2007).
to the extent that Johnston's claims are based upon tort
law (i.e., allegations of willful and wanton conduct or
negligence) with respect to his security classification,
claims predicated upon the tortious conduct of federal
employees acting within the scope of their employment may
only be pursued under the Federal Tort Claims Act, 28 U.S.C.
§ 2670 et seq. (“FTCA”). Johnston
neither invokes the FTCA in his complaint nor does he name
the United States as a defendant, as is required for an FTCA
claim. Allgeier v. United States, 909 F.2d 869, 871
(6th Cir.1990) (“The FTCA clearly provides that the
United States is the only proper defendant in a suit alleging
negligence by a federal employee.”) (citing 28 U.S.C.
§ 2679(a)). Further, the remedy against the United
States provided by the FTCA is exclusive with respect to
claims that fall within its scope, and thus a plaintiff may
not circumvent its exhaustion or limitations provisions
merely by pursuing a negligence claim under state law
directly against the federal employee in his or her
individual capacity. 28 U.S.C. § 2679(b)(1).
of these reasons, Johnston's Complaint must be dismissed
for failure to state a claim.
the Court hereby ORDERS as follows:
Johnston's Motion for Leave to Proceed In Forma
Pauperis (Doc. #4) is GRANTED. Section
1915(b)(1) requires a prisoner-plaintiff to pay the $350.00