STANKO v. FEDERAL BUREAU OF PRISONS (BOP) et al

Filing 20

Entry and Order Dismissing Action - the amended complaint filed on February 14, 2011, fails to survive the screening required by § 1915A because it fails to contain a legally viable claim. Dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is therefore mandatory. Judgment consistent with this Entry shall now issue. Signed by Judge Jane Magnus-Stinson on 7/28/2011.(copy to plaintiff via U. S. mail)(see entry for more details)(VS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

RUDY STANKO,
Plaintiff,
v.
FEDERAL BUREAU OF
PRISONS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 2:10-cv-253-JMS-WGH

Entry and Order Dismissing Action
In the Entry issued on December 16, 2010, the court screened the amended
complaint pursuant to 28 U.S.C. § 1915A. As a result of the screening, the court: (1)
determined “as a result of such screening the only claim not dismissed as legally
insufficient is the claim against the federal Bureau of Prisons pursuant to the
Administrative Procedures Act (‘APA’),” (2) dismissed all other claims as legally
insufficient, (3) directed the plaintiff to file a second amended complaint not later than
January 14, 2011, (4) reinstructed the plaintiff concerning the structure of a proper
pleading setting forth a claim (the second amended complaint, in this case), and (5)
directed that second amended complaint “be presented as a new document, not a further
redaction of the original and amended complaints” (emphasis in original).
Based on the foregoing Entry and other prior proceedings, the task before the
court at present is to determine whether the amended complaint filed by plaintiff Rudolph
Stanko on February 14, 2011, states a claim upon which relief can be granted. For the
reasons explained in this Entry, the court finds that it does not and that the action must
therefore be dismissed

Discussion
Because Stanko is a prisoner as defined by 28 U.S.C. § 1915(h), the court has
screened his complaint as required by 28 U.S.C. § 1915A(b). Lagerstrom v. Kingston,
463 F.3d 621, 624 (7th Cir. 2006). This statute directs that the court dismiss a complaint
or any claim within a complaint which "(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief." Id.; see Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
2006). A complaint states a claim upon which relief can be granted when the plaintiff
“pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009), and "[a] complaint is subject to dismissal for failure to state a claim if the
allegations, taken as true, show that plaintiff is not entitled to relief." Jones v. Bock, 127 S.
Ct. 910, 921 (2007). In addition, although the requirements of notice pleading are
minimal, "a plaintiff can plead himself out of court by alleging facts which show that he has
no claim." Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995).
Pursuant to 18 U.S.C. § 3621(e)(2)(B), the Federal Bureau of Prison (“BOP”) has
the discretion to reduce an inmate's sentence by up to one year if he was convicted of a
nonviolent offense and successfully completes its Residential Drug Abuse Program
(“RDAP”). The RDAP can be made available to eligible prisoners. An “eligible prisoner” is
one who is “determined by the Bureau of Prisons to have a substance abuse problem,”
and who is “willing to participate in a residential substance abuse treatment program.” 18
U.S.C. § 3621(e)(5)(B). Stanko, who is in BOP custody at a prison in this District, was
evaluated and found to be ineligible for the RDAP. He claims that he has been improperly
denied assignment to the BOP’s RDAP. He seeks relief pursuant to the APA, 5 U.S.C. §
706.
The APA authorizes federal courts to set aside agency actions that are either
unconstitutional, see 5 U.S.C. § 706(2)(B), or are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See id. § 706(2)(A). “[A] person
suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review
thereof.” 5 U.S.C. § 702.
Stanko alleges that he was denied enrollment in the RDAP in violation of the APA.
His effort seeking judicial review of that decision is clear, but it is equally clear that 18
U.S.C. § 3625, which governs imprisonment of inmates, provides that the judicial review
provisions of the APA “do not apply to the making of any determination, decision, or order
under this subchapter.” In short, 18 U.S.C. § 3621 provides that the BOP determines what
prisoners are eligible to participate in the RDAP and 18 U.S.C. § 3625 precludes judicial
review of that determination pursuant to the APA. See United States v. Norman, 2009 WL
1347028 (S.D.Tex. 2009) (holding that the court did not have authority to review the
non-placement of a prisoner in the RDAP); see also Richmond v. Scibana, 387 F.3d 602,

605 (7th Cir. 2004)(finding that § 3625 precludes review of agency decisions regarding
placement during the last months of incarceration); Orr v. Hawk, 156 F.3d 651, 655, n.1
(6th Cir. 1998)(noting that the BOP is exempt from the judicial review and notice and
comment provisions of the APA); Thye v. United States, 109 F.3d 127, 130 (2d Cir. 1997)
(“Decisions to place a convicted defendant within a particular treatment program or a
particular facility are decisions within the sole discretion of the Bureau of Prisons.”).
A plaintiff “pleads himself out of court when it would be necessary to contradict the
complaint in order to prevail on the merits.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086
(7th Cir. 2008)(citing Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006)). The
foregoing circumstances show that Stanko has done precisely that.
For the reasons explained above, the amended complaint filed on February 14,
2011, fails to survive the screening required by § 1915A because it fails to contain a
legally viable claim. Dismissal of the action pursuant to 28 U.S.C. § 1915A(b) is therefore
mandatory. Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002).
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

07/28/2011
Date: _________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana