Johnson v. Bureau of Prisons

Filing 16

ORDER DISMISSING CASE without prejudice in accordance with Heck v. Humphrey, 512 U.S. 477 (1994). Signed by Judge Nancy J. Rosenstengel on 12/16/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENJAMIN ANTHONY JOHNSON,
# 32451-044,

Plaintiff,
vs.
BUREAU OF PRISONS,

Defendant.

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Case No. 16-cv-1107-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Benjamin Anthony Johnson pleaded guilty to conspiring to distribute cocaine
and launder money in the United States District Court for the Eastern District of Michigan. He
was sentenced to 150 months’ imprisonment and is currently incarcerated at the United States
Penitentiary in Marion, Illinois. Plaintiff brings this pro se action for alleged violations of his
constitutional rights under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and the
Federal Tort Claims Act, 28 U.S.C. § 2671. The case is now before the Court for a preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.

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Background
A brief review of Plaintiff’s conviction, appeals, and collateral attacks is necessary to
place his claims in context.1 In 2005, Plaintiff was indicted by a federal grand jury for conspiring
to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846; for
possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1); and for conspiracy to launder monetary instruments in violation of
19 U.S.C. §§ 1956(a)(1) and 1956(h). In 2007, Plaintiff pleaded guilty to conspiracy to distribute
five or more kilograms of cocaine and to conspiracy to launder monetary interests. By way of a
separate cooperation agreement, the United States agreed to move for a reduction in sentence
under § 5K1.1 of the United States Sentencing Guidelines or Federal Rule of Criminal Procedure
35, but only if the United States determined that Plaintiff indeed provided substantial assistance.
In preparation for sentencing, the United States Probation Office prepared a presentence
investigation report. That report concluded that Plaintiff’s offense level was 38, a level two
points higher than the offense level computed by the plea agreement, because Plaintiff proved
ineligible for the two-point safety valve reduction of Section 2D1.1(b)(9) of the Sentencing
Guidelines. Plaintiff was not eligible for a reduction, according to the Probation Office, because
he was a manager or leader of others involved in the offense and because he had more than one
criminal history point. Plaintiff’s advisory guidelines range, based on an offense level of 38 and
a criminal history category of II, was 262 to 327 months of imprisonment.
After the presentence report was submitted, the district judge held a sentencing hearing
on May 12, 2008. At that hearing, Plaintiff’s lawyer argued Plaintiff should get credit for the
time he served in a state prison during the pendency of his federal case. The district judge
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Plaintiff recently filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Johnson v. Powers,
Case No. 3:16-cv-1028-DRH (filed September 13, 2016). That petition was dismissed with prejudice on December
9, 2016. Id. at Doc. 5. Portions of this history are taken from that order of dismissal.
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initially denied the request but later decided that Plaintiff’s lawyer should be given an
opportunity to brief the matter, so he deferred the sentencing hearing and heard arguments from
both sides. A second sentencing hearing was held on November 17, 2008. At that hearing, the
parties and the district judge agreed that the appropriate guideline range was set forth in the
Probation Office’s presentence report, and that Plaintiff should receive some credit for the time
he spent in state prison while awaiting federal sentencing. The district judge sentenced Plaintiff
to a 150 month term of imprisonment. At the end of the hearing, Plaintiff himself asked that his
plea agreement be set aside and that he be allowed to proceed to trial, but the district judge
denied Plaintiff’s request and held fast to the sentence.
Plaintiff appealed his conviction and his sentence, but the Sixth Circuit rejected that
challenge and affirmed his conviction on April 6, 2010. Plaintiff has also filed two habeas
petitions in this Court pursuant to 28 U.S.C. § 2241. The first petition was filed on March 4,
2016. See Johnson v. M. Baird, Case No. 3:16-cv-00235-CJP. In that action, Plaintiff claims the
Bureau of Prisons did not properly calculate his past incarceration credit and thus he is being
held improperly in federal prison. The second petition was filed on September 13, 2016. See
Johnson v. Powers, Case No. 3:16-cv-1028-DRH. In that action, Plaintiff asserted arguments
substantially identical to those presented in this case; he challenged his conviction and the length
of his sentence. The second petition was dismissed with prejudice on December 9, 2016. Id. at
Doc. 5.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: (1) the United
States breached Section 1B1.8 of the United States Sentencing Guidelines when it used some of
the information Plaintiff provided to the Government to calculate Plaintiff’s relevant drug

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quantity for sentencing purposes (Doc. 1, pp. 1-2); (2) there were errors in the relevant drug
quantity calculation and criminal history calculation in the Probation Office’s presentence
investigation report (Doc. 1, pp. 2-4); (3) the Michigan sentencing judge erred in applying a
managerial role enhancement to Plaintiff’s sentence (Doc. 1, p. 3); and (4) Plaintiff’s plea
agreement is invalid. (Doc. 1, p. 7). Plaintiff contends these arguments demonstrate that his
conviction and sentence are unconstitutional. (Doc. 1, pp. 2-6). Plaintiff seeks monetary relief for
each year of wrongful imprisonment and depression stemming from the same. (Doc. 1, p. 7).
Discussion
This civil rights action challenges the constitutionality of Plaintiff’s conviction and
sentence. This type of action is barred by the ruling in Heck v. Humphrey, 512 U.S. 477 (1994).
Under the Heck doctrine, a prisoner may not obtain damages in a civil rights action for his
unlawful imprisonment, unless he first succeeds in invalidating the sentence or conviction. While
Heck involved a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983, the
Seventh Circuit has held that the Heck doctrine applies equally to a Bivens claim such as this. See
Case v. Milewski, 327 F.3d 564, 569 (7th Cir. 2003); Clemente v. Allen, 120 F.3d 703, 705 (7th
Cir. 1997).
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any outstanding
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criminal judgment against the plaintiff, the action should be allowed to proceed,
in the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (emphasis in original). “We do not engraft an
exhaustion requirement upon § 1983, but rather deny the existence of a cause of action. Even a
prisoner who has fully exhausted available state remedies has no cause of action under
Section 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus.” Id. at 489.
Plaintiff’s action clearly calls into question the validity of his conviction and sentence.
Because Plaintiff has not succeeded in invalidating his conviction or sentence, his claims are
barred by Heck and must be dismissed without prejudice. 2
Disposition
IT IS ORDERED that this action is DISMISSED without prejudice in accordance with
Heck v. Humphrey, 512 U.S. 477 (1994).
IT IS SO ORDERED.
DATED: December 16, 2016

__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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Heck-barred claims should be dismissed without prejudice, so that the plaintiff may later revive it in the event he
succeeds in invalidating the conviction. See Polzin v. Gage, 636 F.3d 834, 839 (7th Cir. 2011) (discussed in Gordon
v. Miller, 2013 WL 4573682 (7th Cir. Aug. 29, 2013)).

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