Drew v. Figueredo et al

Filing 9

ORDER DISMISSING 1 Complaint. COUNTS 1 and 3 are DISMISSED with prejudice against ALL DEFENDANTS, and COUNT 2 is DISMISSED without prejudice against ALL DEFENDANTS for failure to state a claim for relief. Plaintiff is GRANTED leave to file a " First Amended Complaint" on or before November 5, 2020. Should Plaintiff fail to file a First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudi ce for failure to comply with a court order and/or for failure to prosecute his claims. FED. R. CIV. P. 41(b). The dismissal shall also count as one of Plaintiff's three allotted "strikes" under 28 U.S.C. 1915(g). The Clerk's Office is DIRECTED to mail Plaintiff a blank civil rights complaint form. Signed by Judge J. Phil Gilbert on 10/15/2020. (jsy)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDRE’ DREW, #00663-000,

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Plaintiff,
vs.
DR. FIGUEREDO,
MS. SHAW,
MR. TRUE,
MR. MURPHY,
MS. WOMICK,
MR. GRUTHIER,
and MR. SPROUL,
Defendants.

Case No. 20-cv-00337-JPG

MEMORANDUM & ORDER
GILBERT, District Judge:
Plaintiff Andre’ Drew is an inmate in the custody of the Federal Bureau of Prisons (BOP)
and is currently confined at the United States Penitentiary in Marion, Illinois (USP-Marion). He
brings this action for the alleged denial of due process and equal protection by persons acting under
color of federal authority pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
and the Administrative Procedures Act, 5 U.S.C. §§ 701-06. (Doc. 1). In the Complaint, Plaintiff
claims he was unjustly punished for failing to participate in USP-Marion’s residential drug abuse
treatment program (RDAP) and/or drug education course by being denied job opportunities that
include performance pay. (Id. at 1-11). He seeks declaratory judgment,1 permanent injunctive
relief, and backpay. (Id. at 8-9).

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In support of this request for relief, Plaintiff cites 28 U.S.C. §§ 2201-02 (governing declaratory judgment)
and 42 U.S.C. § 2114 (governing toxic waste disposal), the latter of which is inapplicable.

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The Complaint is subject to review under 28 U.S.C. § 1915A, which requires the Court to
screen prisoner complaints and filter out non-meritorious claims. 28 U.S.C. § 1915A(a). Any
portion of the Complaint that is legally frivolous or malicious, fails to state a claim for relief, or
requests money damages from an immune defendant must be dismissed. 28 U.S.C. § 1915A(b).
At this juncture, the factual allegations are liberally construed. Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
Plaintiff makes the following allegations in the Complaint (Doc. 1, pp. 1-11): Plaintiff has
been in BOP custody since 2007. (Id. at 4-7). During that time, he has been housed at three
facilities: United States Penitentiary in Tucson, Arizona (USP-Tucson) (2007-15), United States
Penitentiary in Mariana, Florida (USP-Mariana) (2015-17), and United States Penitentiary in
Marion, Illinois (USP-Marion) (2017-present). (Id.). Although Plaintiff’s claims arose at USPMarion, he offers important background information in the Complaint.
Upon his arrival at USP-Tucson in 2007, Plaintiff’s unit team informed him that he did not
qualify as a candidate for mandatory RDAP or drug education at that facility based on the
information contained in his presentence investigation report (PSR). (Id. at 4). However, he could
volunteer for either program based on his marijuana use in 1973. (Id.). Plaintiff declined to
participate in the program. He also tested negative each time he was screened for drug and alcohol
use at that facility. (Id.).
When he transferred to USP-Mariana in 2015, Plaintiff’s unit team again offered him the
option of participating in RDAP or a drug education course on a voluntary basis. (Id. at 5). The
team explained that the prison’s policy did not require him to participate in either program. (Id.).

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Plaintiff again declined the invitation to participate in these programs and tested negative each
time he was screened for drug and alcohol use. (Id.).
When Plaintiff transferred to USP-Marion on April 3, 2017, he was assigned to N-Unit and
remained there for twenty months without discussing RDAP or drug education with his unit team.
However, Plaintiff spent his first week in the Special Housing Unit as punishment for resisting
Defendant Murphy’s efforts to spur a conflict between Plaintiff and his cellmate. Plaintiff later
learned that Murphy classified him as an inmate with a substance abuse disorder sometime
thereafter and, in doing so, obligated him to participate in RDAP or drug education. (Id.).
On July 15, 2017, Defendant Shaw informed Plaintiff that he was enrolled in a mandatory
drug education course and was subject to sanctions for nonparticipation. Plaintiff apparently chose
not to participate. When Plaintiff applied for a job on December 28, 2018, his application was
rejected. Plaintiff finally learned why on July 10, 2019. Apparently, Defendants Figueredo and
Shaw identified him in SENTRY as having “refused” to participate in the drug education course.
He was thus ineligible for employment in the prison industries and for performance pay. (Id.).
When Plaintiff filed a grievance to address the matter, Defendant Womack reviewed
Plaintiff’s SENTRY file with him. Womack noted that Murphy listed Plaintiff as an inmate with
a substance abuse order, triggering his obligation to participate in RDAP or drug education.
Although Womack agreed that Plaintiff did not qualify as a candidate for either program, she took
no action to correct Murphy’s erroneous classification. Plaintiff was instead encouraged to address
the matter with Figueredo. But, when Plaintiff submitted an inmate call-out request, Figueredo
never contacted him. Plaintiff’s grievances were denied at all levels by Figueredo, Gruthier, True,
Sproul, and other high-ranking officials who are not named as defendants in this action. (Id. at 6).

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On June 20, 2019, Plaintiff was assigned to work as a G-Unit orderly cleaning showers.
Instead of performance pay of $32/month, Plaintiff earned maintenance pay of $5.25/month. This
job and lower pay resulted from his lack of participation in the drug education course. (Id.).
Plaintiff maintains that his erroneous classification violates BOP Program Statement
P5330.11 for the following reasons:
(1)

the Drug Education course must be provided at the beginning of the inmate’s
sentence;

(2)

the Warden has the authority to exempt an inmate from participation in Drug
Education;

(3)

there must be verification that can establish a pattern of substance abuse or
dependence;

(4)

there must be documentation to support a substance use disorder within the 12month period before the inmate’s arrest on his current offense; and

(5)

recreational, social, or occasional use of alcohol and/or other drugs that do not rise
to the level of excessive or abusive use does not provide the required verification
of a substance use disorder.

(Id.) (citing BOP PS 5330.11). Moreover, 18 U.S.C. § 3621(e)(1)(b) provides that “every prisoner
with a substance abuse problem has the opportunity to participate in appropriate substance abuse
treatment.” Section 3621(e)(5)(b) defines “eligible prisoner” as a prisoner who is determined by
the BOP to have a substance abuse problem. Plaintiff’s PSR mentions his use of marijuana with
his victims, but it does not establish a substance abuse problem requiring mandatory participation
in RDAP or drug education under the PS 5330.11 or 18 U.S.C. § 3621(e)(1)(b). Defendants’
actions in erroneously classifying Plaintiff as an inmate with a substance abuse disorder thus
violates his right to due process and equal protection of the law.
Based on the allegations, the Court finds it convenient to reorganize Plaintiff’s claims into
the following enumerated counts:

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Count 1:

Fifth Amendment due process claim against Defendants pursuant to Bivens
for classifying Plaintiff as having a substance abuse problem that required
his participation in USP-Marion’s RDAP and/or drug education course
when his participation was not required under P.S. 5330.11 or 18 U.S.C.
§ 3621(e)(1)(b).

Count 2:

Fifth Amendment equal protection claim against Defendants pursuant to
Bivens for classifying Plaintiff as having a substance abuse problem that
required his participation in USP-Marion’s RDAP and/or drug education
when it was not mandatory under P.S. 5330.11 or 18 U.S.C. § 3621(e)(1)(b).

Count 3:

APA claim pursuant to 5 U.S.C. §§ 551, 701-06 arising from violations of
BOP Program Statements 5330.11, 5251.06, and/or 8120.03.

Any claim that is mentioned in the Complaint but not addressed herein is considered
dismissed without prejudice as inadequately pled under Twombly.2
Discussion
Count 1
Fifth Amendment due process protections apply when a protected liberty or property
interest is at stake. Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir. 1982). However, inmates do
not have a protected liberty interest in RDAP participation or the attendant early release benefit.
Walker v. Cross, No. 13-cv-102-DRH-CJP, 2014 WL 285097, at *3 (S.D. Ill. 2014) (collecting
cases). The Seventh Circuit Court of Appeals has also found no liberty or property interest in a
prison job or pay. See Vanskike v. Peters, 974 F.2d 806, 809 (7th Cir. 1992) (“[T]here is no
Constitutional right to compensation for [prison] work; compensation for prison labor is ‘by the
grace of the state.’”) (quoting Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir. 1968)). See also
Brozych v. Litscher, No. 02-C-0128-C, 2002 WL 32350066, at *4 (W.D. Wis. 2002) (two year
limit on prison job and pay reduction without a hearing did not state due process claim). The
Seventh Circuit recently extended this holding into the Bivens context, finding that it provides no

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See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).

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remedy for an inmate alleging a due process violation based on the loss of a prison job. Grady v.
Kinder, 799 F. App’x 925 (7th Cir. 2020) (liberty or property interest did not arise from loss of
prison job). In fact, the United States Supreme Court has long held that prison officials have
discretion to determine whether an inmate may participate in RDAP and related drug education.
Lopez v. Davis, 531 U.S. 230 (2001). Murphy’s administrative decision to identify Plaintiff as an
inmate with a substance abuse problem, Figueredo’s and Shaw’s subsequent decision to identify
him in SENTRY as having refused to participate in the drug education course, and the remaining
defendants’ denial of his related grievances thus supports no Fifth Amendment due process claim.
Count 1 shall be dismissed with prejudice for failure to state a claim.
Count 2
A plaintiff may use Bivens to redress a violation of the equal protection component of the
Due Process Clause of the Fifth Amendment in some contexts and not others. See, e.g., Davis v.
Passman, 442 U.S. 228 (1979) (implying Bivens action under the equal protection component of
the Due Process Clause in the context of alleged gender discrimination in employment); but see
Schweiker v. Chilicky, 487 U.S. 412 (1988) (refusing to imply Bivens action for alleged due process
violations in the denial of Social Security disability benefits on the ground that a damages remedy
was not included in the elaborate remedial scheme devised by Congress). Even if Plaintiff’s claim
presents one such context, it is meritless.
Although the Fifth Amendment does not contain an Equal Protection Clause, the Supreme
Court has construed the Fifth Amendment to contain a guarantee of equal protection. Edmonson
v. Leesville Concrete Co., 500 U.S. 614, 616 (1991). Fifth Amendment equal protection claims
are analyzed under the same principles that apply to Fourteenth Amendment claims. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995). The Equal Protection Clause does not

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require the Government to treat everyone the same; different treatment is allowed if there is a
rational basis for it. May v. Sheahan, 226 F.3d 876, 882 (7th Cir. 2000). In order to state a claim
in this context, a prisoner must generally show that he was treated differently than similarlysituated inmates based upon a suspect classification or a fundamental right. However, Plaintiff
does not allege that he was required to participate in RDAP based on his membership in a suspect
class or in violation of a fundamental right. See Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d
599, 601 n.1 (7th Cir. 2009); Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005). He challenges the
eligibility determination made by USP-Marion officials, after officials at two other BOP facilities
deemed him ineligible to participate. At the same time, Plaintiff acknowledges that he was likely
required to participate in drug education because of his past marijuana use—which offers at least
some support for the decision to require drug education. A traditional equal protection claim is
undeveloped and unsupported by the allegations in the Complaint.
The allegations also support no equal protection claim under a “class of one” theory. That
theory applies if Plaintiff “has been intentionally treated differently from others similarly situated
and . . . there is no rational basis for the difference in treatment.” Walker v. Samuels, 543 F. App’x
610 (7th Cir. 2013) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiff
makes no claim that he was treated differently than anyone else. The complaint does not present
a class-of-one equal protection claim.
A prison administrative decision may give rise to an equal protection claim only if the
plaintiff can establish that “state officials had purposefully and intentionally discriminated against
him.” Meriwether v. Faulkner, 821 F.2d 408, 415 n.7 (7th Cir.), cert. denied, 484 U.S. 935 (1987)
(citing Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982)). Plaintiff’s allegations fall short of
this standard. The allegations merely describe a decision Plaintiff does not like. However,

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“isolated events that adversely affect individuals are not presumed to be a violation of the equal
protection clause.” Shango, 681 F.2d at 1104 (quoting Gamza v. Aguirre, 619 F.2d 449, 453 (5th
Cir. 1980)). Likewise, inconsistencies in prison management do not necessarily constitute an equal
protection claim. Id. (quoting Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir. 1978)). Plaintiff’s
claim that USP-Marion officials treated his substance abuse classification differently than USPTucson and USP-Mariana officials is an inconsistency that supports no equal protection claim.
Count 2 shall be dismissed without prejudice.
Count 3
Plaintiff asks this Court to review the decision deeming him eligible for participation in
RDAP and drug education at USP-Marion pursuant to the Administrative Procedures Act, 5 U.S.C.
§§ 701-06, et seq. As a general rule, decisions regarding RDAP are not reviewable under the APA.
See 18 U.S.C § 3625. See Durance v. Cross, No. 13-cv-926-CJP, 2014 WL 285095 (S.D. Ill.
2014) (citing Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“The plain language of this
statute specifies that the judicial review provisions of the APA, 5 U.S.C. §§ 701-06, do not apply
to ‘any determination, decision, or order’ made pursuant to 18 U.S.C. §§ 3621-24.”). According
to 18 U.S.C. § 3621, the BOP has authority to decide which prisoners are eligible to participate in
RDAP, and 18 U.S.C. § 3625 prohibits judicial review of these determinations pursuant to the
APA. Stanko v. Federal Bureau of Prisons, 2011 WL 3236388, at *2 (S.D. Ind. 2011) (citing
Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004) (a placement decision, itself, is not subject
to an APA challenge); Orr v. Hawk, 156 F.3d 651, 655 n.1 (6th Cir. 1998); Thye v. United States,
109 F.3d 127, 130 (2d Cir. 1997)).
Plaintiff does not gain traction with this claim by casting it as an APA claim based on a
violation of BOP Program Statements 5330.11, 5251.06, and/or 8120.03. For one thing, he does

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not develop his claim as it pertains to Program Statement 5251.06 or 8120.03. Moreover, the APA
provides no relief for non-compliance with policy statements. Grady v. Kinder, 799 F. App’x 925
(7th Cir. 2020). A BOP officer’s failure to follow a program statement does not violate federal
law. Witkowski v. Kallis, No. 17-cv-1142, 2019 WL 148394, at *5 (C.D. Ill. 2019) (citing Reeb,
636 F.3d at 1227). BOP program statements are more akin to policies or interpretive rules. Reno
v. Koray, 515 U.S. 50, 61 (1995). Accordingly, Count 3 shall be dismissed with prejudice.
The Complaint does not survive screening and shall be dismissed. This includes dismissal
of Counts 1 and 3 with prejudice and dismissal of Count 2 without prejudice. Plaintiff will have
an opportunity to re-plead his Fifth Amendment equal protection claim in Count 2, if he wishes to
do so in an Amended Complaint. In addition, he may also plead a First Amendment retaliation
claim, if the facts support a claim.3
Disposition
IT IS ORDERED that the Complaint is DISMISSED without prejudice. COUNTS 1 and
3 are DISMISSED with prejudice against ALL DEFENDANTS, and COUNT 2 is DISMISSED
without prejudice against ALL DEFENDANTS, all for failure to state a claim for relief.
Plaintiff is GRANTED leave to file a “First Amended Complaint” on or before
November 5, 2020. Should Plaintiff fail to file a First Amended Complaint within the allotted
time or consistent with the instructions set forth in this Order, the entire case shall be dismissed
with prejudice for failure to comply with a court order and/or for failure to prosecute his claims.

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Although Plaintiff did not mention retaliation in the Complaint, it is possible that a First Amendment
retaliation claim arises from the events described in the Complaint. The defendants’ adverse action against
Plaintiff does not violate the Constitution when standing alone, but it may support a civil rights claim if the
action was taken in retaliation for the exercise of a constitutionally protected right. See Bridges v. Gilbert,
557 F.3d 541, 552 (7th Cir. 2009) (discussing Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) (“[A]n
act in retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 [and,
likewise Bivens] even if the act, when taken for different reasons would have been proper.”).

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FED. R. CIV. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga,
34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915(e)(2). The dismissal shall also count as one of
Plaintiff’s three allotted “strikes” under 28 U.S.C. § 1915(g).
When preparing his First Amended Complaint, Plaintiff is strongly encouraged to use the
civil rights complaint form designed for use in this District. He should label the form, “First
Amended Complaint,” and list the case number for this action (No. 20-cv-00337-JPG) on the first
page. To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail Plaintiff
a blank civil rights complaint form.
An amended complaint generally supersedes and replaces the original complaint, rendering
the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.
1 (7th Cir. 2004). The First Amended Complaint must stand on its own without reference to any
previous pleading. Plaintiff must re-file any exhibits he wishes the Court to consider. The First
Amended Complaint is also subject to review pursuant to 28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee remains due and payable, regardless of
whether Plaintiff files a First Amended Complaint. 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch,
133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this Order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).

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IT IS SO ORDERED.
DATED: 10/15/2020
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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