Masters v. Hyde et al

Filing 4

RECOMMENDED DISPOSITION recommending that 2 the Complaint be dismissed, without prejudice, for failing to state a claim upon which relief may be granted; and dismissal be counted as a "strike" and the Court certify that an in forma pauperis appeal from any Order adopting this Recommendation would not be taken in good faith. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 2/16/2018. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

WAYNE HOWARD MASTERS,
Reg. #20662-009
V.

PLAINTIFF

2:18CV00003 JM/JTR

KEN HYDE, Acting Assistant Director, et al.

DEFENDANTS

RECOMMENDED DISPOSITION
The following Recommended Disposition ("Recommendation") has been sent
to United States District James M. Moody, Jr. Any party may file written objections
to this Recommendation. Objections must be specific and include the factual or
legal basis for disagreeing with the Recommendation. An objection to a factual
finding must specifically identify the finding of fact believed to be wrong and
describe the evidence that supports that belief.
An original and one copy of the objections must be received by the Clerk of
this Court within fourteen (14) days of this Recommendation. If no objections are
filed, Judge Moody can adopt this Recommendation without independently
reviewing all of the evidence in the record. By not objecting, you may also waive
any right to appeal questions of fact.

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I. Introduction
Plaintiff Wayne Howard Masters ("Masters") is a prisoner in the Forrest City
Federal Prison Camp.

He has filed a pro se Bivens Complaint alleging that

Defendants violated his constitutional rights. Doc. 2. Before Masters may proceed
with action, the Court must screen his allegations.1
II.

Discussion

In 2015, Masters was sentenced to five years in federal prison. Doc. 2. This
case involves Masters's attempt to obtain a compassionate release or reduction in
sentence, pursuant to 18 U.S.C. § 3582(c)(1)(A), which provides, in pertinent part,
that:
(A) the court, upon motion of the Director of the Bureau of
Prisons, may reduce the term of imprisonment (and may impose a term
of probation or supervised release with or without conditions that does
not exceed the unserved portion of the original term of imprisonment),
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if it finds that –
(i) extraordinary and compelling reasons warrant such a
reduction;

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The Prison Litigation Reform Act requires federal courts to screen prisoner complaints
seeking relief against a governmental entity, officer, or employee. 28 U.S.C. ' 1915A(a). The
Court must dismiss a complaint or a portion thereof if the prisoner has raised claims that: (a) are
legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c)
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. ' 1915A(b).
When making this determination, a court must accept the truth of the factual allegations contained
in the complaint, and it may consider the documents attached to the complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).
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* * *
and that such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
(Emphasis added).
To obtain consideration for a § 3582(c)(1)(A) compassionate release or a
reduction in sentence, a federal prisoner must submit a request to the Warden of the
facility where he is incarcerated. 28 C.F.R. § 571.61. If the Warden determines
that the prisoner meets the guidelines established in BOP Program Statement
5050.49, the request is sent to the Office of the General Counsel for review. Id.;
BOP Program Statement 5050.49.

If the General Counsel agrees, the request is

forwarded to the Director of the Bureau of Prisons, who then decides, in his or her
discretion, whether to file a petition asking the sentencing court for a compassionate
release or reduction in sentence. Id. Even if the prisoner is successful at all three
discretionary review stages within the BOP, it is ultimately within the sentencing
court's discretion to deny or grant the petition. See § 3582(c)(1)(A).
In April of 2017, Masters submitted a request to Defendant Warden Beasley
("Beasley") seeking consideration for a § 3582(c)(1)(A) compassionate release or
reduction in sentence because he was seventy-four years old and had Parkinson's
disease, which Masters believes is a "debilitating" and "terminal" medical condition
as defined by Program Statement 5050.49. Doc. 2 at Ex. 1. In conjunction with
Masters's request, Defendant Nurse Practitioner Lamarre completed a Reduction in
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Sentence Medical Review Form, in which she concluded that Masters did not have
a "debilitating" or "terminal" medical condition. Id. at 38.
Masters alleges that Beasely has not made a decision on or acknowledged
receipt of his request. Masters also contends that Defendants Camp Administrator
Guthrie, BOP Regional Director Caraway, and General Counsel Hyde have ignored
his grievances and letters challenging Beasley's failure to rule on his request.
A.

Due Process Claim
Masters alleges that Beasley, Guthrie, Caraway, and Hyde have denied him

due process of law by failing to make a decision on this April 2016 request for a §
3582(c)(1)(A) compassionate release or reduction in sentence.
Masters is entitled to due process of law only if he has a liberty interest at
stake. Hewitt v. Helms, 459 U.S. 460, 466 (1983); Bonner v. Outlaw, 552 F.3d 673,
676 (8th Cir. 2009). Masters does not have a constitutionally protected liberty
interest in obtaining early release from prison. Greenholtz v. Inmates of Neb. Penal
& Corr. Complex, 442 U.S. 1, 7 (1979). Similarly, Masters does not have a
statutorily created liberty interest in obtaining a compassionate release or reduction
in sentence. Instead, it is clear from the plain language of § 3582(c)(1)(A) that it is
within the BOP's discretion to decide whether to file a petition for a compassionate
release or reduction in sentence, and the sentencing court's discretion as to whether
to grant that petition. See Crowe v. United States; 09-6508, 2011 WL 2836364 (6th
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Cir. July 18, 2011)(unpublished opinion)("the BOP's decision regarding whether or
not to file a petition for compassionate release is judicially unreviewable"); Turner
v. U.S. Parole Comm'n, 810 F.2d 612, 615 (7th Cir. 1987) (same); Fernandez v.
United States, 941 F.2d 1488, 1493 (11th Cir. 1991)(same); Simmons v. Christensen,
894 F.2d 1041, 1043 (9th Cir. 1990); Waters v. Rio, No. 17CV1367, 2017 WL
3635315 (D. Minn. May 18, 2017) (unpublished decision) (same).
Because Masters does not have a protected liberty interest in obtaining a §
3582(c)(1)(A) compassionate release or reduction in sentence, he does not have a
due process right to require Defendants to comply with internal BOP Program
Statements or policies regarding the processing of his request. See Lee v. Zuniga,
No. 1:15CV297, 2017 WL 2628101 (E.D. Cal. June 19, 2017) (unpublished
decision); Callahan v. Scarantino, No. 15-1008, 2016 WL 7443392 (W.D. Okla.
Nov. 30, 2016) (unpublished decision). Thus, Court concludes that Masters has
failed to plead a viable due process claim.
B.

Cruel and Unusual Punishment Claim
Masters makes the confusing assertion that Lamarre subjected him to "cruel

and unusual punishment" by incorrectly concluding, in the Reduction in Sentence
Medical Review Form, that Masters did not have a "debilitating" or "terminal"
medical condition. Doc. 2 at 12-13.

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It is well settled that a prisoner's mere disagreement with medical decisions
does not rise to the level of a constitutional violation. Fourte v. Faulkner Cnty.,
Ark., 746 F.3d 384, 387 (8th Cir. 2014); Langford v. Norris, 614 F.3d 445 (8th Cir.
2010). More importantly, Masters is not alleging that Lamarre failed to provide with
constitutionally adequate medical care for Parkinson's disease. Instead, Masters asks
the Court to "strike" the allegedly inaccurate findings Lamarre made in the
Reduction in Sentence Medical Review Form.

For the previously explained

reasons, the Court does not have jurisdiction to do so. Further, even if the Court did
have jurisdiction, Masters's claim is premature because the BOP has not made a
decision on his request for a petition for compassionate release or a reduction in
sentence.

Thus, the Court concludes that Masters has not pled a viable cruel and

unusual punishment claim.
C.

Civil Conspiracy Claim
Finally, Masters makes the conclusory and vague allegation that Defendants

have acted in "conspiracy to defraud Plaintiff of his rights." Doc. 2 at 15.
To state viable civil conspiracy claim, Masters must "allege with particularity
and specifically demonstrate with material facts that the defendants reached an
agreement" to deprive him of his constitutional rights. Mendoza v. U.S. Immig. &
Customs Enforc., 849 F.3d 408, 421 (2017); Davis v. Jefferson Hosp. Ass'n, 685 F.3d
675, 685 (8th Cir. 2012). Masters has not provided any particular or specific facts
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suggesting that any of the Defendants reached an agreement to delay or deny his
request for a compassionate release or reduction in sentence. Instead, Masters bases
his conspiracy claim on pure speculation. See Mendoza, 849 F.3d at 421 (holding
that a civil conspiracy claim cannot be based on "[m]ere speculation or conjecture").
More importantly, a civil conspiracy must be premised on the violation of a
constitutional right, which Masters has not pled. Id. (holding that a civil conspiracy
claim "necessarily fails" in the absence of a constitutional violation). Accordingly,
the Court concludes that Masters has failed to plead a viable civil conspiracy claim.
III. Conclusion
IT IS THEREFORE RECOMMENDED THAT:
1.

The Complaint be DISMISSED, WITHOUT PREJUDICE, for failing

to state a claim upon which relief may be granted.
2.

Dismissal be counted as a "STRIKE," pursuant to 28 U.S.C. § 1915(g).

3.

The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in

forma pauperis appeal from any Order adopting this Recommendation would not be
taken in good faith.
Dated this 16th day of February, 2018.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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