Heard v. Stenson et al
MEMORANDUM OPINION & ORDER: 1. Heard's complaint 1 is DISMISSED WITH PREJUDICE. 2. JUDGMENT shall be entered contemporaneously with this Order. 3. This action is STRICKEN from the Court's active docket. Signed by Judge Joseph M. Hood on 2/8/2018.(STC)cc: Plt (Main Document 10 replaced on 2/8/2018) (STC).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LIONEL VINCENT HEARD,
DR. S. STENSON, et al.,
Civil No. 5: 17-185-JMH
Inmate Lionel Vincent Heard is incarcerated at the Federal
Medical Center (“FMC”) – Lexington located in Lexington, Kentucky.
Proceeding without an attorney, Heard has filed a civil rights
action pursuant to Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971).
complaint because he has been granted permission to pay the filing
28 U.S.C. §§ 1915(e)(2), 1915A.
court must dismiss any claim that is frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.
Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
testing the sufficiency of Heard’s complaint, the Court affords it
a forgiving construction, accepting as true all non-conclusory
factual allegations and liberally construing its legal claims in
the plaintiff’s favor.
Davis v. Prison Health Servs., 679 F.3d
433, 437-38 (6th Cir. 2012).
As an initial matter, the complaint filed by Heard is quite
difficult to follow.
The “complaint” consists of a form complaint
of unknown origin (it is not the form approved for use by this
Court), followed by pages of narrative allegations into which
treatises, and other exhibits are randomly inserted.
is a disjointed, confusing pleading that is very difficult to
Heard’s claims, the gist of Heard’s complaint appears to be that
placement in a Residential Re-Entry Center (RRC), also known as a
halfway house, despite his near completion of the Bureau of
Prison’s (BOP’s) Residential Drug Abuse Program (RDAP).
The RDAP is a program through which qualified federal inmates
receive various incentives for participating in drug abuse
treatment programs. 28 C.F.R. § 550.57. The BOP has discretion
to allow an inmate a sentence reduction of up to one year if the
inmate was convicted of a nonviolent offense and has successfully
completed a substance abuse treatment program.
18 U.S.C. §
p. 4-5]. According to Heard, while nearing completion of the RDAP,
he was referred to Dr. Stenson and “Medical Dr. Dankwa” for RRC
placement; however, on November 6, 2015, Heard’s Unit Team received
documentation from “Dr. Harvey of the Regional Clinic Consultant
(CSA) Central Sector Administrator,” who had determined that Heard
was not appropriate for RRC placement due to his current medical
[Id. at p. 5].
Although it is not entirely clear, Heard appears to be
claiming that officials at FMC-Lexington acted fraudulently by
permitting him to participate in the RDAP, notwithstanding the
fact that he may not actually earn a year off of his sentence
because of medical issues.
He further suggests that prison
officials were incentivized to enroll more prisoners in the RDAP
because of “bad faith quotas” and that the “fraudulent” coercion
of inmates to participate in the RDAP, even though these inmates
may not be eligible for a sentence reduction because of medical
concerns, constitutes cruel and unusual punishment in violation of
the Eighth Amendment.
[Id. at 14].
He also appears to suggest
that prison officials violated his Fifth Amendment due process
rights by removing him from the RDAP and preventing him from being
eligible for a sentence reduction.
In addition, he claims that
the BOP’s failure to respond to his administrative grievances
violated his Fifth Amendment due process rights.
[Id. at 14-15].
A complaint must set forth sufficient allegations to “state
a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. 662, 678 (2009).
The Court has an obligation to
liberally construe a complaint filed by a person proceeding without
counsel, but it has no authority to create arguments or claims
that the plaintiff has not made.
Coleman v. Shoney’s, Inc., 79 F.
App’x 155, 157 (6th Cir. 2003) (“Pro se parties must still brief
dismiss Heard’s complaint for failure to state a claim.
First, to the extent that Heard seeks to sue Defendants in
their official capacities, his claims fail.
A suit against a
government employee in his or her “official capacity” is not, as
one might suppose, a suit against the employee for his or her
conduct while performing job duties for the government.
It is, in
fact, a suit against the government agency that employs the
individual. Thus, an official capacity suit against a BOP employee
is a suit against the BOP, which is a federal agency.
authorizes suits against federal employees for violations of civil
rights, it does not waive the sovereign immunity enjoyed by the
United States and its agencies.
Ctr. for Bio–Ethical Reform, Inc.
v. Napolitano, 648 F.3d 365, 370 (6th Cir. 2011) (Bivens claims
may be asserted against federal officials only in their individual
capacities); Okoro v. Scibana, 63 F. App’x 182, 184 (6th Cir.
capacities fare no better.
While Bivens expressly validated the
availability of a claim for damages against a federal official in
his or her individual capacity, an officer is only responsible for
his or her own conduct. Ashcroft, 556 U.S. at 676-677.
Ziglar v. Abbasi, 137 S.Ct. 1843, 1860 (2017).
Thus, in order to
recover against a given defendant in a Bivens action, the plaintiff
“must allege that the defendant [was] personally involved in the
alleged deprivation of federal rights.”
Nwaebo v. Hawk-Sawyer, 83
F. App’x 85, 86 (6th Cir. 2003) (citing Rizzo v. Goode, 423 U.S.
362, 373-77 (1976)).
Quintana (Warden of FMC-Lexington), J.F. Caraway (BOP Regional
Director), Ian Connors (Administrator in BOP’s Central Counsel’s
Office) or “Ms. Chaney” (Anteas Unit Counselor at FMC-Lexington)
were personally involved in the decision to deny Heard placement
in an RRC due to his medical condition.
At most, he suggests that
grievances filed with the BOP with respect to his participation in
the RDAP and the denial of his placement in an RRC.
Bivens liability may not be imposed simply because a supervisor
denied an administrative grievance or failed to act based upon
information contained in a grievance.
Nwaebo v. Hawk-Sawyer, 100
F. App’x 367, 369 (6th Cir. 2004)(citing Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir.1999)).
With respect to Quintana, Heard also suggests that, as Warden,
he is responsible for the conduct of his employees, such that, if
there were problems with the administration of the RDAP program at
However, such a claim seeks to impose liability upon Quintana for
his employees’ conduct, a form of sweeping supervisory liability
which is unavailable in a Bivens action:
“[i]n a § 1983 suit or
a Bivens action - where masters do not answer for the torts of
their servants - the term ‘supervisory liability’ is a misnomer.”
Ashcroft, 556 U.S. at 677 (2009).
See also Ziglar, 137 S.Ct. at
Thus, Heard fails to state a claim against Quintana for
which relief may be granted.
Construing Heard’s complaint as broadly as possible, his last
remaining claim seeks to impose liability against Dr. Stenson in
his individual capacity for his failure to place him in an RRC.
First, it is not clear from the allegations of Heard’s complaint
the involvement, if any, of Dr. Stenson in making the determination
that Heard should not be placed in an RRC because of his medical
However, even if Dr. Stenson had been involved in this
placement are expressly insulated from judicial review under the
18 U.S.C. § 3625 (“The provisions of sections 554 and 555
and 701 through 706 of title 5, United States Code, do not apply
to the making of any determination, decision, or order under this
Cf. Woodard v. Quintana, No. 5:15-307-KKC, 2015 WL
7185478, at *5-6 (E.D. Ky. Nov. 13, 2015). “When a court sentences
a federal offender, the BOP has plenary control, subject to
imprisonment,’ and the treatment programs (if any) in which he may
(2011)(citing 18 U.S.C. §§ 3621(b), (e), (f); 3624(f); 28 C.F.R.
pt. 544 (2010)).
Thus, even if “a prisoner successfully completes
the RDAP, the BOP retains the discretion to deny early release.”
Heard v. Quintana, 184 F. Supp.3d 515, 519 (E.D. Ky. 2016).
also Orr v. Hawk, 156 F.3d 651, 653 (6th Cir. 1998) (explaining
that the BOP has “substantial discretion” under the statute).
Moreover, given this “broad discretion left to the BOP,
participating in a RDAP, and are not denied due process if they
are removed from the program.”
Heard, 184 F. Supp.3d. at 519; see
also Sesi v. U.S. Bureau of Prisons, 238 F.3d 423, 2000 WL 1827950,
*2 (6th Cir. 2000) (“[T]here is no liberty interest in a reduced
sentence, and § 3621(e)(2)(B) does not afford such an interest.”).
Thus, to the extent that Heard challenges Dr. Stenson’s and/or the
BOP’s determination with respect to his participation in an RDAP
(including his placement in an RRC) on constitutional grounds, any
such challenge fails as a matter of law.
For all of these reasons, Heard fails to state a claim for
which relief may be granted against any of the named Defendants.
Accordingly, IT IS ORDERED that:
Heard’s complaint [R. 1] is DISMISSED WITH PREJUDICE.
JUDGMENT shall be entered contemporaneously with this
This action is STRICKEN from the Court’s active docket.
This 8th day of February, 2018.
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