LEWIS v. SESSIONS, ET AL.,

Filing 46

MEMORANDUM filed. Signed by Judge Colm F. Connolly (DED) on 11/19/2018. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KENNETH WAYNE LEWIS,
Plaintiff,
: Civil Action No. 17-5475-CFC

V.

BUREAU OF PRISONS, et al.,
Defendants.

MEMORANDUM
1.

Introduction. Plaintiff Kenneth Wayne Lewis ("Plaintiff'), an inmate at

FCI Fort Dix in Fort Dix, New Jersey, commenced this action on July 26, 2017. (D.I. 1)
Plaintiff proceeds pro se and has been granted leave to proceed in forma pauperis.
(D.I. 45) The Amended Complaint (D.I. 32) is the operative pleading. The Court
screens and reviews the Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2) and

§ 1915A(a).
2.

Background. In February 2014, Plaintiff was found guilty by a jury on a

fifteen-count indictment (Counts 1-4 wire fraud; Counts 5-15 money laundering) in the
United States District Court for the Central District of Illinois, United States v. Lewis,
Crim. No. 12-10082). See Lewis v. Sessions, 2017 WL 3531477, at *1 (D.N.J. Aug. 17,
2017). In June 2014, Plaintiff received a 151-month sentence on the wire fraud
convictions and a 120-month sentence on the money laundering convictions to be
served consecutively to each other for a total of 271 months imprisonment. Id. On
appeal, the United States Court of Appeals for the Seventh Circuit vacated the
convictions for money laundering and remanded to the district court for resentencing on

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the wire fraud convictions. Id. An amended judgment was entered on August 22,
2016, and Plaintiff was resentenced to 135 months imprisonment on the four wire fraud
count convictions. Id.
3.

In the instant case, the original Complaint sought to bring criminal charges

against various federal Defendants. (D.I. 29) The original Complaint was also
construed as raising a claim under the Privacy Act, 5 U.S.C. § 552, with respect to
records maintained by the Federal Bureau of Prisons ("BOP"). On November 3, 2017,
Plaintiff's applications to proceed in forma pauperis (D.I. 1-4, 21) were denied without
prejudice because Plaintiff failed to include a certified six-month trust fund account
statement as required by 28 U.S.C. § 1915(a)(2), and the case was administratively
closed. (D.1. 29)
4.

Plaintiff was advised that if he opted to proceed with this civil action, within

45 days he was to: (1) submit a complete in forma pauperis application and certified
six-month account statement; (2) clarify the types of claims he wished to assert; and
(3) submit a single all-inclusive Amended Complaint that complied with Rules 8 and 15
of the Federal Rules of Civil Procedure. (Id.) Plaintiff was advised that he could not
bring a criminal complaint in this Court and that his only options were to either have the
Court construe his allegations as Bivens 1 claims or have them dismissed for lack of

1

When a litigant sues federal actors for damages on constitutional grounds, the claim is
governed by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388, 389 (1971 ).

2

jurisdiction. (Id.) Plaintiff was provided a complaint form 2 and an in form pauperis
application. (Id.)
5.

On November 14, 2017, Plaintiff submitted an affidavit of pleading, on

November 28, 2017, he submitted an affidavit of declaration, and on December 4, 2017,
he submitted a new in forma pauperis application, a certified copy of his prison trust
account, and an Amended Complaint. (D.I. 30, 31, 32) On December 7, 2017, the case
was reopened. Plaintiff continued filing affidavits and documents, some of which
appear to be motions, including a request for default even though no Defendant had
been served, and the Amended Complaint had not been screened. (D.I. 33-43) The
matter was assigned to me on September 26, 2018. (D.l. 44)
6.

Amended Complaint. As noted, Plaintiff was directed to submit a single

all-inclusive Amended Complaint that complied with Fed. R. Civ. 8 and 15. Within a
very short time after submitting the Amended Complaint, Plaintiff submitted a document
that contained several exhibits. (See D.l. 33) Accordingly, in screening the Amended
Complaint the Court considers the Amended Complaint (D.1. 32) and the exhibits at D.I.
33. Plaintiff's numerous other filings are not considered to the extent Plaintiff intended
them as supplements, addenda, amendments, or exhibits to the Amended Complaint.
7.

The Amended Complaint names 234 Defendants. (D.I. 32 at 5-12) The

Amended Complaint: ( 1) alleges violations of the Privacy Act due to inaccurate records
under 5 U.S.C. §§ 552a(e)(5), 552a(g), 552a(g)(1 )(c), and 552a(g)(4); (2) invokes the
False Claim Act, 31 U.S.C. §§ 3729(a)(2), 3729(a)(3), and 3730 as a means to establish

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Plaintiff did not use the form.
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"commercial liens"; (3) speaks to conspiracy and violations of the right to due process;
(4) alludes to violations of federal criminal law and refers to 18 U.S.C. §§ 4, 10, 1001,
1201, 1203, 1346; and (5) seeks habeas relief, including immediate release, due to
illegal incarceration.
8.

The Amended Complaint also refers to a multitude of "lien debtors." (Id. at

22-28) Of the 234 Defendants, only ten Defendants are specifically mentioned in the
Amended Complaint (the ten Defendants specifically mentioned in the allegations will
be referred to "the named Defendants"). They are the United States Department of
Justice ("USDOJ"), Case Manager Boyd ("Boyd"), Probation Officer David Burgess
("Burgess"), Probation Officer Mary Kennedy ("Kennedy''), retired Ft. Dix Associate
Warden Laura Mason ("Mason"), Ft. Dix Warden David Ortiz ("Warden Ortiz"), the BOP,
Patricia Sanges ("Sanges"), 3 United States District Court Judge James Shadid ("Judge
Shadid"), 4 and United States Magistrate Judge Jonathan E. Hawley ("Judge Hawley''). 5
9.

For relief, Plaintiff seeks compensatory damages and financial remedies

to "address the wrong of inaccurate files and records" and penal liability requiring "full
value" compensation. (D.I. 32 at 29-30) Plaintiff also seeks the issuance of subpoenas
to prove inaccurate files and records. (Id. at 29-30) He alleges that the "subpoenas will
depict that there was a violation of 'due process,"' and the inaccurate files and records

3

One of Plaintiff's victims in his criminal case. (See D.I. 33 at 44, 45)

4

The judge who presided over Plaintiff's criminal case, United States v. Lewis, Crim.
No. 12-10082-JES-JEH (C.D. Ill.)

5

The magistrate judge to whom matters were referred in Plaintiff's criminal case.

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permitted his illegal imprisonment. (Id. at 30) The documents he seeks are all related
to his underlying criminal conviction. Plaintiff also seeks his immediate release, and the
government's return of all his seized funds and property. (Id.)
10.

Legal Standards. A federal court may properly dismiss an action sua

sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(8) and§ 1915A(b) if

"the action 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."
Ball v. Famiglio, 726 F.3d 448,452 (3d Cir. 2013). See also 28 U.S.C. § 1915(e)(2) (in
forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress

from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with
respect to prison conditions). The Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips
v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.

89, 93 (2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and
his Amended Complaint, "however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at
94 (citations omitted).
11.

An action is frivolous if it "lacks an arguable basis either in law or in fact."

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and
§ 1915A(b)(1 ), a court may dismiss a complaint as frivolous if it is "based on an

indisputably meritless legal theory'' or a "clearly baseless" or "fantastic or delusional"
factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmi/1, 878 F.2d 772, 774
(3d Cir. 1989).
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12.

The legal standard for dismissing a complaint for failure to state a claim

pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim
upon which relief may be granted pursuant to the screening provisions of 28 U.S.C.
§§1915 and 1915A, the Court must grant Plaintiff leave to amend unless amendment
would be inequitable or futile. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 114

(3d Cir. 2002).
13.

A well-pleaded complaint must contain more than mere labels and

conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. Corp.

v.

Twombly,

550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has
substantive plausibility. See Johnson

v. City of Shelby, _U.S._, 135 S.Ct. 346, 347

(2014). A complaint may not be dismissed, however, for imperfect statements of the
legal theory supporting the claim asserted. See id. at 346.
14.

A court reviewing the sufficiency of a complaint must take three steps: ( 1)

take note of the elements the plaintiff must plead to state a claim; (2) identify allegations
that, because they are no more than conclusions, are not entitled to the assumption of
truth; and (3) assume the veracity of any well-pleaded factual allegations and then
determine whether those allegations plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotations omitted). Elements are sufficiently alleged when the facts in the complaint
"show'' that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ.

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P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that
requires the reviewing court to draw on its judicial experience and common sense." Id.
15.

Habeas Corpus. It appears that Plaintiff seeks habeas relief given that

he alleges unlawful confinement and seeks immediate release. (D.I. 32 at 37-48) The
gist of Plaintiff's Amended Complaint is that Probation Officers Burgess and Kennedy
did not issue a revised or amended presentence report in his criminal case on
sentencing remand and this rendered his resentencing and subsequent imprisonment
illegal. Plaintiff has raised this issue in numerous other cases. See e.g., Lewis v.
Sessions, 2017 WL 3531477. Plaintiff alleges there is no evidence to support the PSR

and, because the PSR was not amended, there is no evidence to substantiate
restitution, and Plaintiff's sentence constitutes "fraud" "in accordance with Rule 9(b)."
(D.I. 32 at 16)
16.

He also alleges violations of his right to due process because inaccurate

files and records permit his illegal imprisonment. (Id. at 32) Plaintiff specifically refers
to Sanges, one of his victims, and her alleged losses, noting the criminal documents
contain two different sums. (Id. at 16) Plaintiff questions how Judge Shadid arrived at
the 135-month sentence. He contends the amended judgment and commitment order
are null and void, and this calls into question the accuracy of the entire docket in his
criminal case. (Id.) Finally, Plaintiff alleges that Judge Shadid deliberated, but did not
adjudicate, objections to the PSR all in violation of federal criminal statutes. (Id. at 19)
17.

As previously determined by this Court, regardless of how Plaintiff labels

his PSR claim, it clearly questions the legality of his federal sentence. See Lewis v.
Sessions, 2017 WL 3531477, at *2. Thus, to the extent he seeks habeas relief, Plaintiff

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must file a separate petition for writ of habeas corpus. See Lewis v. Sessions, 2017 WL
3531477; Lewis v. Lewis, 2017 WL 2225573 (D.N.J. May 19, 2017); Lewis v. Lynch,
2017 WL 2256959 (D.N.J. May 19, 2017); Lewis v. Lynch, 2016 WL 7217600 (D.N.J.
Dec. 13, 2016). Notably, Plaintiff has been advised at least twice that this Court lacks
jurisdiction to consider his habeas petition. See Lewis v. Sessions, 2017 WL 3531477,
at *3; Lewis v. Lynch, 2016 WL 7217600, at *2-3. Accordingly, the claim will be
summarily dismissed. 6
18.

Privacy Act. Plaintiff's main claims are raised under the Privacy Act, 5

U.S.C. § 552a. Plaintiff alleges his BOP file and his public records within the court
system are inaccurate and, thus, violate the Privacy Act for failure to maintain accurate
files. (D.I. 32 at 34) As discussed above, Plaintiff alleges the amended judgment and
commitment order are null and void and call into question the accuracy of the entire
docket sheet in his criminal case. (Id. at 16) He further alleges that in the criminal
matter, Counts 1-4 are inaccurate which makes the court records violative of
§ 552a(e)(5) and activated those sections of the Privacy Act that establish civil
remedies. (Id. at 17) The Amended Complaint alleges there is no amended PSI, no
valid restitution under 18 U.S.C. § 3664, no valid judgment and commitment order, and
the PSR does not contain the signatures of Probation Officers Burgess and Kennedy, all

6

To the extent Plaintiff intends to raise Bivens claims against Judge Shadid and Judge
Hawley, they have judicial immunity. See Mireles v. Waco, 502 U.S. 9, 12 (1991)
0udicial officers in the performance of their judicial duties, enjoy absolute immunity from
suit). To the extent Plaintiff intends to raise Bivens claims against Probation Officers
Burgess and Kennedy, they, too, are immune from suit. "[A] probation officer acting in a
judicial capacity is entitled to absolute immunity." Stankowski v. Farley, 251 F. App'x
743, 747 (3d Cir. 2007) ("Preparing the presentence report thus was a quasi-judicial
function for which [the probation officer] is absolutely immune from suit.").
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in violation of§ 522a(g)( 4 ). (Id. at 19) Finally, Plaintiff alleges the BOP uses his PSR
for classification and designation. 7 (Id. at 15)
19.

"The Privacy Act 'governs the government's collection and dissemination

of information and maintenance of its records [and] generally allows individuals to gain
access to government records on them and to request correction of inaccurate
records."' See Kates v. King, 487 F. App'x 704, 706 (3d Cir. 2012) (quoting Perry v.
Bureau of Prisons, 371 F.3d 1304, 1304-05 (11th Cir. 2004)) (alteration in original).
The Act provides that "[w]henever any agency" fails to comply with any provision of the
statute, "the individual may bring a civil action against the agency." 5 U.S.C.
§ 552a(g)(1 ). The Act authorizes suit against federal agencies only and not individual
employees of an agency. See Kates, 487 F. App'x at 706. To the extent Plaintiff seeks
to bring Privacy Act claims against the individually named Defendants, the Amended
Complaint fails to state claims against them.
20.

In addition, the BOP has exempted its central record system (where an

inmate's PSR is located) from the Privacy Act's relevant enforcement provisions. See
Kates, 487 F. App'x at 707 (citing 28 C.F.R. § 16.97(a)); see also Fendler v. United

7

Plaintiff availed himself of the prison's administrative remedies. (See D.I. 32 at 13; D.I.
33 at 33-35) After finding against him, Plaintiff appealed the Fort Dix Warden's decision
and alleged illegal confinement because the sentencing court failed to issue a revised
PSR when Plaintiff was resentenced, contended the BOP had no legal basis for
Plaintiff's incarceration, and requested an immediate release. (D.I. 33 at 18) A May 4,
2017 response to the appeal from the BOP Regional Director advised Plaintiff that Unit
staff sent correspondence to the United States Probation Office and it was determined
by the sentencing judge that a revised PSR would not be issued prior to resentencing.
(Id.)

9

States Bureau of Prisons, 846 F.2d 550, 553-54 (9th Cir. 1988). Plaintiff also refers to
incorrect records in the court docket of his criminal case. However, the "Court is not an
'agency' as defined by the Act, and neither it nor its records are circumscribed by its
restrictions. See Standley v. Department of Justice, 835 F.2d 216, 218 (9th Cir. 1987)
(The Privacy Act does not apply to records of "the courts of the United States."')
(quoting 5 U.S.C. § 551(1)(8))." Lane v. Federal Bureau of Prisons, 2015 WL 2213635,
at 9 (M.D. Pa. May 11, 2015). Nor may a claim be raised against United States
Probation Office because it is a unit of the federal court and is not subject to the Privacy
Act. See Kates, 487 F. App'x at 706 (other citations omitted).
21.

The USDOJ is the only named Defendant that is also an agency.

However, it is named only as part of the civil remedy scheme of the Privacy Act, 5
U.S.C. § 552a(g)(4), which Plaintiff attempts to enforce through the False Claims Act.
As discussed below, the False Claims Act claim will be dismissed. Plaintiff's Privacy
Act claims fail as a matter of law. Therefore, they will be dismissed.
22.

False Claim Act. Plaintiff invokes the False Claim Act to assert

commercial liens because each Defendant ''was advised and afforded the opportunity to
rebut, respond, and answer and all remained silent due to civil conspiracy." (D.I. 32 at
18, 20-29) The commercial liens are directed to each identified defendant with
restitution amounts, inclusive of the USDOJ, as a remedy allowed under the Privacy
Act, § 552a(g)( 4 ). It appears the lien amounts are actually damages sought by Plaintiff,
and the amounts are those allegedly owed by each lien debtor to be payable to Plaintiff.

10

23.

To establish a prima facie case under the False Claims Act, a plaintiff

must prove: ( 1) the defendant presented or caused to be presented to an agent of the
United States a claim for payment; (2) the claim was false or fraudulent; and
(3) defendant knew the claim was false or fraudulent. Hutchins v. Wilentz, Goldman &

Spitzer, 253 F .3d 176, 182 (3d Cir. 2001 ). A private individual, otherwise known as a
relater, may bring a civil action in the name of the United States to enforce this provision
of the False Claims Act and may share a percentage of any recovery resulting from the
suit. See 31 U.S.C. § 3730(b), (d).
24.

It appears the False Claims Act is invoked in lieu of the prayer for relief.

The false or fraudulent report (i.e., PSR) referred to by Plaintiff is not a claim for
payment by the federal government or with federal funds which is the type of claim that
the False Claims Act is designed to address. See 31 U.S.C. § 3729(c) (defining the
term "claim" to include a "request or demand, whether under a contract or otherwise, for
money or property which is made to a contractor, grantee, or other recipient if the
United States Government provides any portion of the money or property which is
requested or demanded"). Nor does Plaintiff provides facts indicating that his case has
anything to do with defrauding a government program. Finally, a pro se litigant, like
Plaintiff, may not pursue a qui tam action on behalf of the Government. See Gunn

v.

Credit Suisse Group AG, 610 F. App'x 155, 157 (3d Cir. 2015). Therefore, to the extent
Plaintiff asserts claims under the False Claims Act, they are dismissed.
25.

Criminal Charges. The Amended Complaint refers to several federal

criminal statutes. Plaintiff has been told that he cannot bring criminal charges in this
Court, yet he disregards the Court's advice. (See D.I. 29) In addition, the Amended
11

Complaint does not indicate if Plaintiff intends for the criminal charges to be raised as

Bivens claims as the Court directed in its November 3, 2017 order. To the extent
Plaintiff intends to raise claims under federal criminal statutes, either criminally or civilly,
they will be dismissed.
26.

Conspiracy. To the extent Plaintiff attempts to allege a Bivens civil

conspiracy, the claim fails. It appears this claim is based upon Defendants' failure to
"rebut and respond" to Plaintiff numerous pleadings, notices, demands, and notices of
default and default judgment. ( 17) The Amended Complaint contains several
references to "civil conspiracy" and "overt acts."
27.
11

A conspiracy claim under Bivens requires that a complaint contain

enough factual matter (taken as true) to suggest that an agreement was made," in

other words, "plausible grounds to infer an agreement." Great W. Mining & Mineral Co.

v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (citingTwombly, 550 U.S. at
556). It is not plausible that the huge number of "lien debtors" followed by the adjective
"civil conspiracy" agreed to deprive Plaintiff of his civil rights. In addition, the Amended
Complaint fails to allege any facts to support an inference that there was an agreement
to deprive Plaintiff of his civil rights. The Court's experience and common sense lead it
to recognize that the conspiracy allegations do not state a facially plausible claim for
relief. See Iqbal, 556 U.S. at 679. Therefore, the claim will be dismissed as frivolous.
28.

Conclusion. For the above reasons, the Court will dismiss with prejudice

the Amended Complaint because many Defendants are immune from suit ( see n.6,

supra) and the claims are frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii) and

12

§ 1915A(b)(1) and (2). The Court finds amendment futile. The Court will deny as moot
any requests for relief made by Plaintiff subsequent to filing the Amended Complaint.
(See D.I. 33-43) An appropriate order will be entered.

Dated: November

/1_, 2018

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