HARRIS v. THE UNITED STATES AND FEDERAL BUREAU OF PRISONS

Filing 5

Entry and Order Dismissing Action - The plaintiff's request to proceed in forma pauperis [dkt 2] is granted. The assignment executed by the plaintiff permitting the court to seek payment of the filing fee from the United States Treasury is n ot a form of payment which the court can accept. Dismissal of the action pursuant to 28 U.S.C. Sec. 1915A(b) is mandatory. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 7/15/2013.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

WILLIAM OSCAR HARRIS,
Plaintiff,
v.
UNITED STATES AND THE FEDERAL
BUREAU OF PRISONS,
Defendants.

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Case No. 2:13-cv-214-WTL-MJD

Entry and Order Dismissing Action
I.
A.
The plaintiff’s request to proceed in forma pauperis [dkt 2] is granted.
The assignment executed by the plaintiff permitting the court to seek payment of the
filing fee from the United States Treasury is not a form of payment which the court can accept.
A separate order requiring payment of the filing fee as specified in 28 U.S.C. § 1915(b)
will be issued.
B.
Because the plaintiff is a Aprisoner@ as defined by 28 U.S.C. ' 1915(h), the court is
obligated pursuant to 28 U.S.C. ' 1915A(b) to dismiss any legally insufficient claim(s) in the
complaint. See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
Thus, “[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). This can mean either that the complaint is insufficient “based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
C.
Plaintiff Harris is confined at a federal prison in this District and uses the Administrative
Procedures Act (“APA”) to challenge his placement in a particular unit there, that being the
Communications Management Unit (“CMU”).
The APA provides a cause of action for persons “suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute,” 5 U.S.C. § 702, but withdraws that cause of action to the extent that the
relevant statute “preclude[s] judicial review” or the “agency action is committed to agency
discretion by law,” id. § 701(a).
The placement Harris challenges is the result of discretion by the Federal Bureau of
Prisons. See Cook v. United States, 2012 WL 5398184, at *3–4 (D.S.C. Oct. 3, 2012); Irvin v.
Owens, 2012 WL 1534787, at *5 (D.S.C. Apr. 30, 2012) (finding federal statutes leave discretion
to BOP officials as to classification decisions); United States v. Gomez–Vieyra, 112 F. App'x
521, 524 (7th Cir. 2004); Caudle v. United States, 1995 WL 730817, at *1 (7th Cir. Dec. 8,
1995) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976)). Additionally, Congress specified
in 18 U.S.C. § 3625 that “[t]he provisions of sections 554 and 555 and 701 through 706 of [the
APA] do not apply to the making of any determination, decision, or order under [18 U.S.C. §§
3621-3625].” 18 U.S.C. § 3625. One such statute provides in pertinent part:
[T]he Bureau of Prisons shall designate the place of the prisoner's imprisonment.
The Bureau may designate any available penal or correctional facility that meets
minimum standards of health and habitability established by the Bureau, whether
maintained by the Federal Government or otherwise and whether within or

without the judicial district in which the person was convicted, that the Bureau
determines to be appropriate and suitable, considering the resources of the facility
contemplated; the nature and circumstances of the offense; [or] the history and
characteristics of the prisoner . . . [T]he Bureau may at any time, having regard
for the same matters, direct the transfer of a prisoner from one penal or
correctional facility to another.
18 U.S.C. § 3621(b)(1), (2), (3), (5). Thus, a designation made pursuant to the foregoing may not
be challenged under the APA because the relevant statute “preclude[s] judicial review” and
because or the “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). See
McKune v. Lile, 536 U.S. 24, 39 (2002)(“It is well settled that the decision where to house
inmates is at the core of prison administrators' expertise.”).
Additionally, due process does not require more procedures than Harris has received, see
Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012); Grayson v. Rison, 945 F.2d 1064, 1067
(9th Cir. 1991) (due process is not implicated in federal prisoner's transfer to less desirable unit),
and Harris does not allege that the conditions of the CMU transgress any interest protected by the
Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993)("It is undisputed that the
treatment a prisoner receives in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment"; prison officials have a duty to provide humane
conditions of confinement by ensuring that inmates receive adequate food, clothing, shelter, and
medical care, and by taking reasonable measures to guarantee the safety of the inmates).
D.
For the reasons explained above, the complaint fails to survive the screening required by
' 1915A, because it fails to state a claim upon which relief can be granted. 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).

II.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

07/15/2013
Date: ________________

_______________________________

Distribution:
William Oscar Harris
#40743-050
Terre Haute FCI
P.O. Box 33
Terre Haute, IN 47808

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana