PEEK v. JULIAN
ENTRY Discussing Filing Fee, Dismissing Complaint, and Directing Further Proceedings - The plaintiff shall have through May 26, 2017, in which to either pay the $400.00 filing fee for this action or demonstrate that he lacks the financial ability to do so. The plaintiff's complaint must be dismissed for each of the reasons set forth above. The plaintiff shall have through May 26, 2017, in which to show cause why Judgment consistent with this Entry should not issue (SEE ENTRY FOR ADDITIONAL INFORMATION). Copy sent to Plaintiff via US Mail. Signed by Judge Larry J. McKinney on 5/2/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
S. JULIAN Warden, Bureau of Prisons,
Entry Discussing Filing Fee, Dismissing Complaint, and Directing Further Proceedings
The plaintiff shall have through May 26, 2017, in which to either pay the $400.00 filing
fee for this action or demonstrate that he lacks the financial ability to do so. If he seeks leave to
proceed in forma pauperis, his request must be accompanied by a copy of the transactions
associated with his institution trust account for the 6-month period preceding the filing of this
action on April 24, 2017.
The plaintiff is a federal prisoner currently incarcerated at USP Terre Haute (“Terre
Haute”). Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an
obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants.
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or
malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is
immune from such relief. In determining whether the complaint states a claim, the Court applies
the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility 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, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff
are construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
The plaintiff brings this action pursuant to the Administrative Procedures Act (“APA”), 5
U.S.C. § 702, against S. Julian of the Bureau of Prisons. He alleges that he completed the
Residential Drug Abuse Program (“RDAP”) at Terre Haute. Pursuant to 18 U.S.C § 3621(e)(2),
“[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully
completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may
not be more than one year from the term the prisoner must otherwise serve.” The plaintiff asserts
that, although he successfully completed the RDAP, he was denied a sentence reduction under
§ 3621. Specifically, the Bureau of Prisons cited, among other things, 28 C.F.R. § 550.5(b)(5)(ii)
as a basis for denying the reduction, which is a regulation that prevents inmates from receiving a
sentence reduction if they are serving a sentence for a felony that involved possession of a firearm.
The plaintiff brings two challenges to the denial of his sentence reduction. First, he argues
that there was no evidence proffered by the government during his underlying criminal case that
he possessed a gun in the course of his drug offense. Second, he contends that the Bureau of
Prisons lacked authority to exclude an entire category of prisoners via 28 C.F.R § 550.5(b) from
eligibility for a sentence reduction under 18 U.S.C § 3621(e)(2). The plaintiff maintains that,
pursuant to the APA, the Court should set aside the Bureau of Prisons’s decision and order a
reduction in his sentence.
These exact arguments have been foreclosed by the Seventh Circuit and Supreme Court,
respectively. First, the Seventh Circuit has rejected a similar challenge by a prisoner who argued
that he did not possess a firearm during the commission of his underlying conviction. See Lopez
v. Rios, 553 Fed. Appx. 610, 610 (7th Cir. 2014). Although in that case the prisoner brought his
claim via a 28 U.S.C. § 2241 habeas petition, the Seventh Circuit noted that he would not have
been successful even if his claim was brought under the APA because “[a]n APA action contesting
a discretionary denial of early release after successful completion of drug treatment . . . is
categorically barred by [18 U.SC.] § 3625.” Id. (collecting cases).
In that same case, the Seventh Circuit also rejected the second argument the plaintiff raises
here. Specifically, the Seventh Circuit noted that “a challenge to the BOP’s general policy also
hits a dead end since the Supreme Court has held that excluding from early release those prisoners
who were involved with firearms is a reasonable, permissible administrative policy.” Id. (citing
Lopez v. Davis, 531 U.S. 230, 244 (2001)).
For these reasons, the plaintiff has failed to state a viable claim for relief under the APA,
and this action must be dismissed pursuant to 28 U.S.C. § 1915A(b). Because district courts are
not permitted to “convert” APA suits into habeas corpus actions, or vice versa, see Richmond v.
Scibana, 387 F.3d 602, 606 (7th Cir. 2004), the Court has assessed the plaintiff’s claims only for
whether they state a viable APA claim, as this is expressly the vehicle through which the plaintiff’s
claims are raised. Thus, the Court takes no view on whether the plaintiff has viable challenges to
the denial of sentencing reduction pursuant to 28 U.S.C. § 2241. See Lopez, 553 Fed. Appx. at
611 (noting the types of challenges that can be raised in § 2241 habeas petitions).
The plaintiff’s complaint must be dismissed for each of the reasons set forth above. The
plaintiff shall have through May 26, 2017, in which to show cause why Judgment consistent with
this Entry should not issue. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir.
2013) (“Without at least an opportunity to amend or to respond to an order to show cause, an IFP
applicant’s case could be tossed out of court without giving the applicant any timely notice or
opportunity to be heard to clarify, contest, or simply request leave to amend.”).
IT IS SO ORDERED.
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
P.O. BOX 33
TERRE HAUTE, IN 47808
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
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