Banks v. Sessions et al

Filing 15

ORDER: As discussed in the order, Banks habeas claimsexcept his request for habeas relief concerning his Equal Protection claimare dismissed with prejudice. Banks' Equal Protection claim is dismissed without prejudice for failure to exhaust adm inistrative remedies. Banks' petition for mandamus relief is denied, and his complaint for monetary damages is dismissed without prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on December 22, 2011.(SP)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
FREDERICK BANKS, #05711-068
VERSUS

PETITIONER
CIVIL ACTION NO. 5:10-cv-141-DPJ-FKB

JEFF SESSIONS, et al.

RESPONDENTS
ORDER

This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner,
Frederick Banks, was an inmate incarcerated at the Federal Correctional Institute, Yazoo City,
Mississippi, at the time he filed this petition for habeas relief pursuant to 28 U.S.C. § 2241,
petition for a writ of mandamus/prohibition and a complaint.1 Banks requests as relief the
following: declaratory judgment, monetary damages, habeas and mandamus relief.
I.

Background
Banks complains that he was issued two separate incident reports which resulted in his

removal from the Residential Drug Abuse Program (“RDAP”) wait list. Pet. [1] at 4. Banks
contends that Respondents denied his constitutional right to due process in the following ways:
(1) “expell[ing]” Banks from the RDAP wait list; (2) informing Banks that he, an American
Indian, could reapply to participate in the RDAP in six months instead of a 90-day period given
to black and white inmates; and (3) precluding Banks from appealing the incident reports. Id. at

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Petitioner Banks has named over one hundred Respondents ranging from “Congressman”
Jeff Sessions to the Los Angeles Times. Because of this large number of Respondents, the Clerk
of Court initially named only the first three Respondents on the Court's docket. Subsequently, an
Order [14] was entered on December 8, 2011, directing the Clerk to add Bruce Pearson, Warden of
FCC-Yazoo City, as a respondent.

5. Banks contends that these acts caused $10,000.00 in damages and violated the Little Tucker
Act2. Id.
II.

Analysis
Banks’ initial pleading seeks three forms of relief styled as a petition for writ of habeas

corpus; a writ of mandamus; and a complaint for monetary damages. Pet. [1]. The Court will
review each under the liberal construction applied to pro se prisoner pleadings.
A.

Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241

A petitioner may file a writ of habeas corpus which attacks the manner in which a
petitioner’s sentence is being executed in the district court with jurisdiction over his custodian,
pursuant to 28 U.S.C. § 2241. United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). To the
extent Banks argues that being removed from the RDAP wait list prevents him from an early
release, this Court finds that this request is properly before the Court as a § 2241 petition. And
because Banks was housed in a facility over which this Court exercises jurisdiction when he
filed the petition, jurisdiction exists to review his claims. See Lee v. Wetzel, 244 F.3d 370, 375
n.5 (5th Cir. 2001); see also United States v. Gabor, 905 F.2d 76, 78 (5th Cir. 1990) (holding
that, “[t]o entertain a § 2241 habeas petition, the district court must, upon the filing of the
petition, have jurisdiction over the prisoner or his custodian”) (emphasis added); McClure v.
Hopper, 577 F.2d 938, 939–40 (5th Cir. 1978) (stating that the transfer of the petitioner to
another facility does not destroy jurisdiction). Thus, the Court considers first whether Banks

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Title 28 U.S.C. § 1346(a)(2) is often referred to as the “Little Tucker Act.” It functions to
create a limited waiver of sovereign immunity and to “empower[] district courts to award damages
but not to grant injunctive or declaratory relief.” Lee v. Thornton, 420 U.S. 139, 140 (1975) (citations omitted).
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exhausted his administrative remedies and then turns to the substance of his constitutional claims.
1.

Exhaustion of Administrative Remedies

Before the Court can consider Banks’ claims, he must exhaust the administrative remedies
available through the Bureau of Prisons (BOP). See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.
1994); see also Mayberry v. Pettiford, 74 F. App’x 299 (5th Cir. 2003) (stating that there is a
judicially-created exhaustion requirement to § 2241 petitions). On June 24, 2011, the magistrate
judge entered an order directing Banks to:
respond in writing on or before July 11, 2011, to this Order to Show Cause and
explain why this case should not be dismissed for failure to exhaust his
administrative remedies through the Bureau of Prisons as set forth in 28 C.F.R. § 542
and Petitioner shall submit with his response to this order copies of all
request/appeals filed with and all responses received from the Warden, Regional
Director, and Central Office Appeals.
Order [9] (italics added).
Although he missed the original deadline, Banks did file a one paragraph Response [10] on
July 6, 2011, in which he generically claims to have “exhausted all available remedies because
Respondents put him into transit after he requested remedies.” He further contends that he was
transferred several times, and at each institution “request[ed] but did not receive remedies.”
Resp. [10]. But Banks failed to explain the steps he took to exhaust his administrative
remedies—as set forth in 28 C.F.R. § 542—and further failed to provide a copy of any
supporting documents demonstrating his efforts to exhaust. Id.
Based on the minimal record Banks offered, the Court finds that he failed to establish
exhaustion of his administrative remedies. But even had Banks established exhaustion in his
Response [10], the Court would still find that all of his claims, except his claim concerning the

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violation of the Equal Protection Clause, fail to state any basis for habeas relief as discussed
below.
2.

Equal Protection

Banks invokes the Equal Protection Clause alleging that BOP treated black and white
inmates more favorably than him due to his status as an American Indian. In particular, he
claims that BOP made him wait six months to reapply for the RDAP whereas black and white
inmates waited only 90 days. Having liberally construed Banks’ allegations and Response [13]
filed November 8, 2011, to this Court's Order [11] entered October 17, 2011, this Court finds
that he has presented, at least at this stage of this civil action, an arguable Equal Protection
claim.
Banks, however, is required to exhaust his administrative remedies. See Fuller v. Rich, 11
F.3d 61, 62 (5th Cir. 1994). “Exceptions to the exhaustion requirement are appropriate where
the available administrative remedies either are unavailable or wholly inappropriate to the relief
sought, to where the attempt to exhaust such remedies would be a patently futile course of
action.” Id. (quoting Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985)). As previously
stated, Banks was given an opportunity to demonstrate that he has exhausted his administrative
remedies or that “extraordinary circumstances” exist to establish the futility of administrative
review. See Ord. [9]. Because Banks, in his Response [10], failed to establish that he has
exhausted his administrative remedies or failed to demonstrate “extraordinary circumstances,”
this Court will not consider this claim and it will be dismissed without prejudice.

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3.

Due Process

Federal habeas relief may be granted when a petitioner establishes that his federal
constitutional rights were violated. See 28 U.S.C. § 2241(c)(3). In this case, Banks claims that
Respondents violated his right to due process by removing him from the RDAP wait list. A
valid due-process claim in this context requires proof of a liberty interest. Richardson v. Joslin,
501 F.3d 415, 418–19 (5th Cir. 2007) (citing Meachum v. Fano, 427 U.S. 215, 223–24 (1976)).3
Such “a liberty interest is created in one of two ways: Either the Due Process Clause confers a
liberty interest or such an interest is created by the state through a statute.” Id. (internal citations
omitted). Neither the Due Process Clause nor any statute creates a liberty interest in remaining
on the RDAP wait list or in early release upon successful completion of the RDAP.
First, “[t]he Due Process Clause confers a liberty interest in punishment that is not
qualitatively different from the punishment characteristically suffered by a person convicted of
crime.” Richardson, 501 F.3d at 419. In other words, if the punishment is “within the normal
limits or range of custody which the conviction has authorized the State to impose, there is no
violation of a protected liberty interest conferred by the Due Process Clause.” Id. (citations and
quotations omitted). More specifically, “[i]nmates do not have a protected liberty interest in
either RDAP participation or in the associated discretionary early release benefit.” Reeb v.
Thomas, 636 F.3d 1224, 1229 n.4 (9th Cir. 2011); see also Richardson, 501 F.3d at 419 (“The
Due Process Clause does not itself confer a liberty interest in a sentence reduction for
completion of an RDAP.”).

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Banks references a property interest created by 8 U.S.C. § 1401(b) and 18 U.S.C. § 4042.
The former is a repealed statute that dealt with nationality at birth and collective naturalization, and
the latter addresses the duties of the BOP. It is not apparent what Banks considers his property
interests or how these statutes would create a property interest.
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Second, a liberty interest can exist where the government creates one by statute. Id.
But to qualify, the statute must be mandatory. “The hallmark of a statute that has not created a
liberty interest is discretion.” Id. Title 18 of the United States Code Section 3621(e)(2)(B)
provides such discretion, stating that the BOP “may” reduce sentences for eligible inmates who
successfully complete treatment in the RDAP. See Lopez v. Davis, 531 U.S. 230, 241 (2001)
(holding that upon completion of RDAP, BOP “has the authority, but not the duty, both to alter
the prisoner’s conditions of confinement and to reduce his term of imprisonment”) (emphasis
added). It follows that “[t]he grant of discretion to the BOP in § 3621(e)(2)(B) indicates that no
entitlement and, hence, no liberty interest, was created.” Richardson, 501 F.3d at 420.
To the extent Banks bases his claim on the delay in participation rather than the possibility
of early release, the Fifth Circuit has not squarely addressed the issue. But it should be noted
that Banks claims delay, not denial, of participation in RDAP. And even where participation is
denied, every other federal decision known to this Court has found that § 3621(e) and the
implementing regulations provide discretion in determining eligibility and create no right to
participate. See, e.g., Standifer v. Ledezma, — F.3d —, 2011 WL 3487074, at *3 (10th Cir. Aug.
10, 2011) (holding that “[a] prisoner has no constitutional right to participate in RDAP”) (citing
Reeb, 636 F.3d at 1229 n.4 (same)); Griffin v. Berkebile, No. 5:10–0740, 2011 WL 4344024, at
*5 (S.D. W.Va. Aug. 23, 2011) (“Thus, as to substance abuse treatment programs, the BOP has
wide discretion in determining . . . whether an inmate enters such a program . . . .”); Mack v. Fed.
Bureau of Prisons, No. 4:10–567–HMH–TER, 2011 WL 3419376, at *1 (D. S.C. May 23, 2011)
(finding “no authority that construes § 3621 as conferring upon an inmate a private right of
action based on expulsion or exclusion from an RDAP program”); Santiago-Lebron v. Fla.

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Parole Comm’n, 767 F. Supp. 2d 1340, 1351 (S.D. Fla. 2011) (“It is well established that
inmates have absolutely no constitutional right to, or other protected liberty interest in, either
participating in RDAP or receiving a sentence reduction for completing such a program.”); Via v.
Lyn, No. 2:10cv101, 2011 WL 573389, at *8 (N.D. W.Va. Jan. 24, 2011) (holding that petitioner
had “no liberty interest in RDAP participation”).4 Therefore, for the reasons set forth above,
Banks’ claims for habeas relief based on the Due Process Clause is dismissed with prejudice.
B.

Petition for Writ of Mandamus/Prohibition

Banks seeks mandamus relief in the form of an order directing Congress to make an
inquiry into the actions taken by the “Agency Respondents” and to issue a “report to the
taxpaying respondents an itemized report of each tax dollar that was spent.” Pet [1] at 6.
Pursuant to 28 U.S.C. § 1361, this Court has original jurisdiction over Banks’s motion for writ of
mandamus. For Banks to be successful on his request for a writ of mandamus, he must
“demonstrate (1) a clear right to the relief, (2) a clear duty by the respondent to do the act
requested, and (3) the lack of any other adequate remedy.” In Re Stone, 118 F.3d 1032, 1034
(5th Cir. 1997). “The remedy of mandamus is a drastic one, to be invoked only in extraordinary
situations.” Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402 (1976). “Moreover, it is important to
remember that issuance of the writ is in large part a matter of discretion with the court to which
the petition is addressed.” Id. at 403. Based on the foregoing, Banks does not have a “clear right
to the relief” and therefore, this Court will not issue a writ of mandamus in the instant case.

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There are many more cases reaching this same conclusion.
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C.

Complaint

Banks also presents a Bivens claim requesting monetary relief for deprivation of his
constitutional right to remain on the RDAP wait list plus a claim under the Little Tucker Act.5
When a habeas petition includes Bivens claims, the Court should separate the claims. See Patton
v. Jefferson Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998). Therefore, in considering Banks’
Bivens claim, this Court finds that such a complaint for monetary damages is governed by the
Prison Litigation Reform Act, 42 U.S.C. § 1997e, and the filing fee requirement of 28 U.S.C. §
1915 applies. Because Banks has received three-strikes and does not allege that he is imminent
danger of serious physical injury at the time he filed the instant lawsuit, this Court finds that
Banks cannot proceed in forma pauperis with the claims for monetary damages.6 See 28 U.S.C.
§ 1915(g). Therefore, his Bivens claims as well as any other non-habeas claims he may have
presented are dismissed without prejudice.
III. Conclusion
As discussed above, Banks’ habeas claims—except his request for habeas relief
concerning his Equal Protection claim—are dismissed with prejudice. Banks’ Equal Protection
claim is dismissed without prejudice for failure to exhaust administrative remedies. Banks’

5

Under Bivens v. Six Unknown Named Agents, a person acting under color of federal law may
be sued for damages if that federal agent deprived another person of a right secured by the
Constitution or other law of the United States. 403 U.S. 388, 395-97 (1971)
6

Banks, while incarcerated, has received a strike in the following cases: Banks v. Hayward,
et al., No. 06-509 (W.D. PA. May 30, 2006), for failure to state a claim; Banks v. Hayward, et al.,
No. 06-1572 (W.D. PA. Jan. 10, 2007), dismissed as frivolous and/or for failure to state a claim;
Banks v. Dove, et al., No. 06-2289 (M.D. PA. Jan. 16, 2007), dismissed as frivolous; and Banks v.
Pittsburgh Tribune Review, et al., No. 07-336 (W.D. PA. May 4, 2007), for failure to state a claim.

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petition for mandamus relief is denied, and his complaint for monetary damages is dismissed
without prejudice.
A Final Judgment in accordance with this Order will be issued on this date.
SO ORDERED AND ADJUDGED this the 22nd day of December, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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