SMOOT v. BUREAU OF PRISONS et al

Filing 8

Entry Dismissing Complaint and Directing Plaintiff to Show Cause - Accordingly, any claims against these defendants are dismissed for failure to state a claim upon which relief can be granted. The plaintiff's complaint must be dismissed for each of the reasons set forth above. The plaintiff shall have through November 27, 2017, in which to either show cause why Judgment consistent with this Entry should not issue or file an amended complaint which cures the deficiencies discussed in this Entry (SEE ENTRY). Copy to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 10/25/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DONALD SMOOT,
Plaintiff,
vs.
BUREAU OF PRISONS,
et al.
Defendants.

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No. 2:17-cv-00358-WTL-MJD

Entry Dismissing Complaint and Directing Plaintiff to Show Cause
I. Screening
Plaintiff Donald Smoot is a prisoner currently incarcerated at the Terre Haute – FCI.
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).

Mr. Smoot brings due process claims under the Administrative Procedures Act (“APA”),
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act
(“FTCA”). The complaint names the following defendants: 1) Bureau of Prisons; 2) Director
Thomas R. Kane; 3) Warden Kruger; 4) Dr. Thomet; 5) C. Purdue, case manager; and 6) D.
Sweeney, admin. He seeks compensatory and punitive damages.
Mr. Smoot’s claims are based on his allegation that his request for executive clemency
was denied because Case Manager Purdue made a false statement in his record that he had
refused to participate in a drug treatment program (“RDAP”). Mr. Smoot further alleges that Mr.
Purdue did not inform him that “the RDAP program was mandatory if he was to receive a
Computation of Sentence under the Executive Clemency Act.” Dkt. No. 1, p. 4.
To be liable for any Bivens claim, the defendant must be directly or personally involved
in the alleged constitutional deprivation. Supervisory responsibility, i.e., respondeat superior,
does not apply in Bivens cases. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Vance v.
Rumsfeld, 701 F.3d 193, 203 (7th Cir. 2012). There are no allegations of wrongdoing alleged
against Director Thomas R. Kane, Warden Kruger, Dr. Thomet, and D. Sweeney. Accordingly,
any claims against these defendants are dismissed for failure to state a claim upon which
relief can be granted.
Mr. Smoot has attached to his complaint a copy of a letter he received from the United
States Department of Justice (“DOJ”), Office of the Pardon Attorney, dated November 30, 2016,
which informed him that his application for commutation of sentence was considered by the DOJ
and by the White House, but was denied. Dkt. No. 1-1, p. 1. The letter stated, “As a matter of
well-established policy, we do not disclose the reasons for the decision in a clemency matter.” Id.

Accordingly, the reason Mr. Smoot’s application for executive clemency was denied is
unknown and his claim that his request was denied because of any of Mr. Purdue’s statements is
factually not plausible. More importantly, this Court has no authority to review the President’s
decision, so any due process claims are meritless. The Constitution gives the President “Power to
grant Reprieves and Pardons for Offences against the United States, except in Cases of
Impeachment.” U.S. Const. art. II § 2. “The Constitution entrusts clemency decisions to the
President’s sole discretion.” United States v. Pollard, 416 F.3d 48, 57 (D.C.Cir. 2005).
“Clemency, over which neither Congress nor the courts share any constitutional authority, is
more properly the exclusive province of the Executive.” Id. “As stated by Judge Learned Hand,
‘[i]t is a matter of grace, over which courts have no review.’” Id. (quoting United States ex. rel.
Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d. Cir. 1950)). Mr. Smoot simply has no legal
entitlement to clemency. Therefore, his due process claims are dismissed for failure to state a
claim upon which relief can be granted.
The APA claim is dismissed for failure to state a claim upon which relief can be
granted because no final agency action is alleged. Builders Bank v. Federal Deposit Ins. Corp.,
846 F.3d 272, 275 (7th Cir. 2017) (the absence of a final agency decision is a reason to dismiss
APA lawsuit); 5 U.S.C. § 701.
“The only proper defendant in an FTCA action is the United States.” Jackson v. Kotter,
541 F.3d 688, 693 (7th Cir. 2008); 28 U.S.C. § 2679(b). There is no FTCA cause of action
against individual employees. Id. The United States is not included as a defendant in this case,
and therefore any FTCA claim is dismissed without prejudice for failure to state a claim
upon which relief can be granted. See Myles v. United States, 416 F.3d 551, 552 (7th Cir.
2005) (noting that the composition and content of a complaint are entirely the responsibility of

the plaintiff, for “even pro se litigants are masters of their own complaints and may choose who
to sue-or not to sue”).
II. Show Cause
The plaintiff’s complaint must be dismissed for each of the reasons set forth above. The
plaintiff shall have through November 27, 2017, in which to either show cause why Judgment
consistent with this Entry should not issue or file an amended complaint which cures the
deficiencies discussed in this Entry. Any amended complaint would completely replace the
original complaint and therefore must be complete. 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.
_______________________________

Date: 10/25/17

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

Distribution:
DONALD SMOOT, 41556-424
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808