Otrosinka v. United States of America et al

Filing 5

ORDER DISMISSING CASE and certifies that an appeal would be frivolous and could not be taken in good faith. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEREMY D. OTROSINKA,
Plaintiff,
CASE NO. 17-13112
HON. GEORGE CARAM STEEH

v.
UNITED STATES OF AMERICA
and UNITED STATES CONGRESS,
Defendants.
______________________________/

ORDER DISMISSING THE COMPLAINT
I. Introduction
This matter has come before the Court on plaintiff Jeremy D.
Otrosinka’s pro se civil rights complaint under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 Plaintiff is an
inmate at the Federal Correctional Institution in Milan, Michigan. The only
defendant listed on the face of his complaint is the United States of America,

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“In Bivens . . . [the Supreme] Court ‘recognized for the first time an implied private
action for damages against federal officers alleged to have violated a citizen’s
constitutional rights.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Correctional
Services Corp. v. Malesko, 534 U.S. 61, 66 (2001)). Where Bivens applies, “the implied
cause of action is the ‘federal analog to suits brought against state officials under Rev.
Stat. § 1979, 42 U.S.C. § 1983.’ ” Id. at 675-76 (quoting Hartman v. Moore, 547 U.S.
250, 254 n.2 (2006)).
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but plaintiff also appears to be suing the United States Congress. He alleges
that Congress has engaged in, and continues to engage in, a pattern and
practice of unduly harming him by violating his constitutional rights and by
acting in excess of its statutory authority.
Plaintiff asserts that, as a result of the defendants’ conduct, he has had
to conduct extensive legal research, learn federal law and constitutional
principles, and determine how to challenge and apply federal law. He states
that this has caused him undue stress and grave mental anguish. Plaintiff
further alleges that, had it not been for unconstitutional congressional
enactments, he would have enjoyed constitutionally sound legislation.
Plaintiff seeks money damages for alleged violations of the Due
Process and Equal Protection Clauses of the Fifth Amendment to the United
States Constitution, the Necessary and Proper Clause of Article 1, Section
8, Clause 18 of the United States Constitution, and the Separation-of-Powers
Doctrine. He also seeks a declaratory judgment stating that the defendants
have violated his rights under the Fifth Amendment, the defendants’ conduct
is arbitrary, capricious, unlawful, and unconstitutional, and the Federal
Sentencing Guidelines Manual is arbitrary, capricious, unlawful, and
unconstitutional. Finally, he seeks an injunction that enjoins the defendants

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from enforcing their views and practices in an unconstitutional or unlawful
manner.
II. Analysis
A. Legal Framework
The Court has granted plaintiff permission to file his complaint without
prepaying the fees and costs for this action. See ECF No. 3. Under the
Prison Litigation Reform Act of 1996, federal district courts must screen an
indigent prisoner’s complaint and dismiss “any prisoner action brought
under federal law if the complaint is frivolous, malicious, fails to state a
claim for which relief can be granted, or seeks monetary relief from a
defendant immune from such relief.” Flanory v. Bonn, 604 F.3d 249, 252
(6th Cir. 2010) (citing 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. §
1997e). A complaint is frivolous if it lacks an arguable basis in law or in
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “A complaint is
subject to dismissal for failure to state a claim if the allegations, taken as
true, show the plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S.
199, 215 (2007).

While a complaint “does not need detailed factual

allegations,” the “[f]actual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555 (2007) (footnote and citations omitted). In
other words, “a complaint must contain sufficient factual matter, accepted
as true, ‘to state a claim to relief that is plausible on its face.’ ” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). To prevail on a
Bivens claim, a plaintiff must prove two elements: “(1) that he or she was
deprived of a right secured by the Constitution or laws of the United States;
and (2) that the deprivation was caused by a person acting under color of
law.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014).
B. Application
Plaintiff’s complaint is frivolous and fails to state a claim for several
reasons. First, “[a]bsent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” Federal Deposit Insurance Corp.
v. Meyer, 510 U.S. 471, 475 (1994). “Sovereign immunity is jurisdictional in
nature.” Id. Furthermore, “[t]he United States has not consented to be
sued for damages based on constitutional violations,” Rivera v. Saris, 130
F. Supp. 3d 397, 401 (D.D.C. 2015) (quotation marks and citations
omitted), affirmed sub nom. Rivera v. Carr, 672 F. App’x 14 (D.C. Cir.
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2016), and “[a] Bivens action may be brought only against individual federal
officials, not against the United States,” Shaner v. United States, 976 F.2d
990, 994 (6th Cir. 1992); see also Meyer, 510 U.S. at 485 (noting that the
Supreme Court “implied a cause of action against federal officials in Bivens
in part because a direct action against the Government was not available”)
(emphasis omitted).
Second, to the extent plaintiff is blaming Congress for promulgating
the Federal Sentencing Guidelines, his allegations are frivolous, because
the United States Sentencing Commission, not Congress, is charged with
establishing federal sentencing guidelines. Beckles v. United States, 137
S. Ct. 886, 893 (2017). And the Commission is “an independent
commission in the judicial branch of the United States,” Mistretta v. United
States, 488 U.S. 361, 368 (1989) (quoting 28 U.S.C. § 991(a)), not the
legislative branch.
Third, plaintiff’s allegations are vague and conclusory. He has not
alleged how the defendants violated the provisions of federal law that he
cites, and in a civil rights action, conclusory allegations of unconstitutional
conduct, without specific facts to support the allegations, fail to state a
claim. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).

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“Some factual basis for such claims must be set forth in the pleadings.”
Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986).
Finally, the alleged injuries are not a sufficient deprivation of federal
rights to warrant relief. Having to conduct his own legal research is not a
compensable injury because plaintiff has not demonstrated that he was
denied his constitutional right of access to the courts, as set forth in Bounds
v. Smith, 430 U.S. 817 (1977). “Bounds did not create an abstract,
freestanding right to . . . legal assistance.” Lewis v. Casey, 518 U.S. 343,
351 (1996).
As for plaintiff’s “mental anguish,” “[n]o Federal civil action may be
brought by a prisoner . . . for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a
sexual act . . . .” 42 U.S.C. § 1997e(e). Because plaintiff has not shown
that he suffered from a physical injury or the commission of a sexual act, he
has no right to relief on the basis of his mental anguish.
III. Conclusion
The United States is immune from suit, Congress is not liable for the
misconduct alleged, and plaintiff has failed to state a plausible claim for
relief. The Court, therefore, summarily dismisses the complaint with
prejudice. The Court also certifies that an appeal from this order would be
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frivolous and could not be taken in good faith. 28 U.S.C. § 1915(a)(3);
Coppedge v. United States, 369 U.S. 438, 445 (1962).
Dated: October 24, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 24, 2017, electronic and/or ordinary mail and also on
Jeremy D. Otrosinka #21214-055, Milan Federal Correctional
Institution, Inmate Mail/Parcels, P.O. Box 1000,
Milan, MI 48160.
s/Barbara Radke
Deputy Clerk

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