CANADA v. JULIEN

Filing 41

ORDER granting 34 Motion to Dismiss for Lack of Jurisdiction - This Court has no jurisdiction to modify Canada's sentence. In addition, Canada has failedto state a claim for relief under the APA or the Fifth Amendment. Accordingly, Canada's complaint must be dismissed. Judgment consistent with this Entry shall now issue. SEE ORDER. Copy sent to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 12/7/2016. (JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

BYRON LEVON CANADA,
Plaintiff,
vs.
STEVEN JULIEN WARDEN/CEO,
Defendant.

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No. 2:15-cv-00383-WTL-DKL

Entry Discussing Motion to Dismiss
Byron Canada is a 68-year old inmate currently being housed at the Federal Prison Camp
in Terre Haute, Indiana. Canada’s projected release date is January 14, 2018, but he applied for
early, compassionate release under 18 U.S.C. § 3582 (c)(1)(A). The Warden denied his request
and Canada has now sued requesting that the Court order the Warden to “Grant CANADA
Compassionate Release/Reduction in Sentence Based on Non-Medical Circumstances for Elderly
Inmates.” (Docket No. 10.)
The defendant moves to dismiss arguing that this Court lacks subject matter jurisdiction to
grant compassionate relief because the Director of Bureau of Prisons (“BOP”) has not filed a
motion requesting the relief. The defendant also argues that the BOP’s decision not to file a §
3582(c)(1)(A) motion on Canada’s behalf is purely discretionary and is not reviewable. Finally,
the defendant argues that 18 U.S.C. § 3582 (c)(1)(A) does not create a cognizable liberty interest
and, therefore, Canada has not stated a claim for relief under the Fifth Amendment to the United
States Constitution. Canada has responded and the defendant has replied. For the following
reasons, the motion to dismiss [dkt 34] is granted.

I. Standard of Review
The defendant moves to dismiss Canada’s claims under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the district court must accept as true all well-pled factual allegations and draw reasonable
inferences in favor of the plaintiff. Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993). The plaintiff
has the burden of supporting the jurisdictional allegations in its Complaint by competent proof.
Int’l Harvester Co. v. Deere & Co., 623 F.2d 1207, 1210 (7th Cir. 1980). As the party asserting
federal jurisdiction, the plaintiff also has the burden of showing that the United States has waived
its sovereign immunity with respect to its claims. United Phosphorous, Ltd. v. Angus Chem. Co.,
322 F.3d 942, 946 (7th Cir. 2003); Fed. R. Civ. P. 12(b)(1).
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
is to test the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chi.
Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). The standard for assessing the procedural
sufficiency of pleadings is imposed by Federal Rule of Civil Procedure 8(a)(2), which requires “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, although
the complaint need not recite “detailed factual allegations,” it must state enough facts that, when
accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). A claim is facially plausible when the plaintiff pleads facts
sufficient for the Court to infer that the defendant is liable for the alleged misconduct. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Twombly/Iqbal standard “is not akin to a ‘probability
requirement’, but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556). By comparison, a complaint that merely contains “labels

and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy
the factual plausibility standard. Twombly, 550 U.S. at 555.
In ruling on a motion to dismiss, the Court views the complaint in the light most favorable
to the plaintiff, accepting all well-pleaded factual allegations as true and drawing all reasonable
inferences from those allegations in favor of the plaintiff. Lee v. City of Chi., 330 F.3d 456, 459
(7th Cir. 2003). Thus, a complaint should only be dismissed pursuant to Rule 12(b)(6) when “it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir.
2007). Additionally, the Court may not rely upon evidence and facts outside of those alleged in
the complaint in ruling on a motion to dismiss.
II. Background
As the standard of review requires, the facts contained in the Complaint are presumed as
true for purposes of this motion to dismiss. On December 9, 2010, Byron Canada was sentenced
in the Northern District of Indiana to a total term imprisonment term of 135 months.1 In February
of 2015, Canada submitted a request for compassionate release to his Case Counselor, Mr. English.
In his request, Canada explained that he had experienced two medical episodes since being
incarcerated. One occurred in October 2011 when Canada had a pacemaker implanted while
incarcerated in Ashland, Kentucky. The other occurred in 2013 or 2014 when Canada had two
cysts removed and then was treated with antibiotics for a subsequent infection. Canada also
reported that he suffered from gout. Canada requested compassionate release under Program
Statement 5050.49(4)(b), Elderly Inmates with Medical Conditions. Canada’s request was

1

The Court may take judicial notice of the cited Court of Appeals decisions and dockets. Opoka v. INS,
94 F.3d 392, 394 (7th Cir. 1996) (federal courts can take judicial notice of the decisions of federal and
non-federal courts); Matthews v. Capital One Bank, 2008 U.S. Dist. LEXIS 90157, *5, 2008 WL
4724277 (S.D. Ind. 2008) (taking judicial notice of docket).

submitted to the Warden, FCC – Terre Haute. Then-Warden LaRiva responded to the request in
writing, stating that “[w]e will not be pursuing a request for compassionate release in your case.”
Warden LaRiva explained that although Canada suffered from various health issues, he did not
meet the medical criteria for compassionate release. Specifically, LaRiva explained that Canada
was not “experiencing deteriorating mental or physical health that substantially diminishes [his]
ability to function in a correctional facility” therefore, a reduction in sentence was not appropriate.
LaRiva also determined that Canada did “not have cognitive deficits which affect [his] activities
of daily living.”
Canada then appealed this denial to the Regional Office. Canada complained that although
his request was for “non-medical” reasons, he was denied consideration “for medical reasons.”
The Regional Office rejected Canada’s appeal because he did not attach the proper documentation.
(directing Canada to provide a copy of the BP-9 form and denial.) Canada resubmitted his appeal
to the Regional Office, but it was again rejected because he did not include the proper
documentation. Canada was notified that if he was dissatisfied with this response, he could appeal
to the General Counsel within 30 calendar days of the date of the response. Canada does not allege
or provide documentation showing that he appealed the rejection to the General Counsel. He
instead alleges that he was precluded from appealing the Regional Office’s decision because he
was not provided the proper documentation.
On November 13, 2015, Canada filed suit against the FCI – Warden under the
Administrative Procedure Act and the Due Process Clause of the Fifth Amendment to the United
States Constitution. In his Amended Complaint, Canada requests that the Court grant him a
compassionate release/reduction in sentence based on non-medical circumstances for elderly
inmates.

III. Discussion
A. Lack of Subject Matter Jurisdiction
The defendant moves to dismiss arguing that this Court lacks subject matter jurisdiction
over his request for an order directing that he is entitled to compassionate release. The Court may
modify a sentence only 1) pursuant to Rule 35 of the Federal Rules of Criminal Procedure; 2)
upon a motion from the Director of the BOP; or 3) when a defendant has been sentenced to a term
of imprisonment based on a sentencing range that has been subsequently lowered by the
Sentencing Commission. See 18 U.S.C.A. § 3582(c). See Engle v. United States, 126 Fed. Appx.
394, 2001 WL 1356205 (6th Cir. 2001) (holding that district court lacks jurisdiction to grant
compassionate relief where Director of Bureau of Prisons has not filed a motion requesting relief);
Morales v. United States, 353 F.Supp.2d 204 (D. Mass. 2005) (district court does not have
authority to modify sentence absent motion from Bureau of Prisons); Braswell v. Gallegos, 82 Fed.
Appx. 633, 635 fn.2 (10th Cir. 2003) (“we lack jurisdiction to consider Mr. Braswell’s request that
the Colorado federal district court order the Director to file such a [§ 3582(c)(1)(A)(i)] motion in
the appropriate Alaska court, and are unaware of any legal authority allowing this court or any
court to make such a directive.”). Because Canada is not seeking a modification of his sentence in
any the three circumstances described above, this Court lacks jurisdiction to entertain his request
for modification.
B. Administrative Procedures Act
In response to the defendant’s argument that this Court lacks jurisdiction over his request
for compassionate release, Canada argues that he is not attempting to obtain a modification of his
sentenced by this Court, but is instead bringing his claim under the Administrative Procedure Act,
5 U.S.C. § 701(a)(2), for review of the agency’s action denying his request. But Canada does not

seek an order from the Court requiring the BOP to re-process his administrative request for
compassionate release, which he argues would be “futile.”
The defendant argues that to the extent Canada claims that the Warden’s decision not to
file a motion for reduction in sentence on Canada’s behalf is arbitrary and capricious, and is asking
the Court to order the BOP to file a compassionate release motion with the sentencing court, this
Court lacks the authority to grant the requested relief. The BOP’s decision to file a motion or not
file a motion under § 3582(c)(1)(A) is entirely discretionary and not subject to judicial review. See
Turner United States Parole Comm’n, 810 F.2d at 613, 615 (7th Cir. 1987).
In 2014, the Seventh Circuit addressed an inmate’s challenge to the BOP’s decision to deny
compassionate relief brought under the Administrative Procedure Act (APA), 5 U.S.C. § 701(a)(2).
DeLuca v. Lariva, 586 Fed.Appx. 239 (7th Cir. 2014). The Court held that while the APA was
normally the appropriate vehicle to contest a decision about the “opportunity to be considered for
release,” the BOP’s decision not to move the sentencing court to reduce the inmate’s sentence is a
judicially unreviewable decision. Id. at 240-41 (citing Turner, 810 F.2d at 613, 615). For this
reason, the plaintiff failed to state a claim under the APA for which his requested relief could be
granted. Id. at 241; see also Hendricks v. President U.S., 575 Fed. Appx. 19 (3d Cir. 2014)
(affirming dismissal of § 2241 petitions to grant compassionate release for lack of jurisdiction
where prisoners complained that BOP failed to provide them with a compassionate release request
packet upon request and that, when they created and submitted their own, the BOP took no action
on them); Crowe v. United States, 430 Fed. Appx. 484 (6th Cir. 2011) (collecting cases); Williams
v. Van Buren, 117 Fed. Appx. 985, 987 (5th Cir. 2004) (holding BOP’s policy of generally
restricting compassionate release to inmates who have been diagnosed with medical conditions
that are terminal within one year, or who suffer from severely debilitating and irreversible

conditions that render them unable to provide self-care, is not subject to challenge under the APA);
Hubbs v. Dewalt, No. 05-CV-512-JBC, 2006 WL 1232895, at *4 (E.D. Ky. May 8, 2006) (“The
BOP’s policy of generally restricting compassionate release only to these [terminally ill] inmates
. . . is exempt from the notice and comment rulemaking procedures of the APA.”). Because the
BOP’s decision not to file a motion for compassionate release on Canada’s behalf is judicially
reviewable, he cannot obtain relief under the APA.
C. Fifth Amendment
Finally Canada claims that he has stated a claim under the Fifth Amendment. The defendant
argues that this allegation fails to state a claim upon which relief may be granted as a matter of law
because a prisoner has no liberty interest in discretionary release from prison before the expiration
of his sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct.
2100, 60 L.Ed.2d 668 (1979) (holding “[t]here is no constitutional or inherent right of a convicted
person to be conditionally released before the expiration of a valid sentence”); Moody v. Daggett,
429 U.S. 78, 88, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (a prisoner does not have a liberty or property
interest in participating in a prison rehabilitation program); Wottlin v. Fleming, 136 F.3d 1032,
1037 (5th Cir. 1998) (“A convicted prisoner does not have a constitutional right to be released
before the expiration of a valid sentence.”). Because there is no due process right to be released
before his sentence has expired, Canada has failed to state a claim upon which relief may be
granted under the Fifth Amendment.
IV. Conclusion
This Court has no jurisdiction to modify Canada’s sentence. In addition, Canada has failed
to state a claim for relief under the APA or the Fifth Amendment. Accordingly, Canada’s
complaint must be dismissed. Judgment consistent with this Entry shall now issue.

IT IS SO ORDERED.

Date: 12/7/16

_______________________________

Distribution:

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

BYRON LEVON CANADA
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