The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
WILLIAM H. COOK III, CASE NO. 3:23 CV 2211
Plaintiff,
v. JUDGE JAMES R. KNEPP II
COLETTE PETERS, et al.,
MEMORANDUM OPINION
Defendants. AND ORDER
INTRODUCTION
Pro se Plaintiff William H. Cook III filed this in forma pauperis civil rights action against
Colette Peters, Director of the Federal Bureau of Prisons (“BOP”); David LeMaster, Warden of
Ashland Federal Correctional Institution (“FCI”); S. Gibson, Camp Administrator of Ashland FCI;
Michelle Fulgum, Manager of BOP’s Nashville Residential Re-entry; Alan Fabry, Director of
Volunteers of America OHIN; Chris Gomez, Regional Director of BOP; and BOP’s Office of
General Counsel. (Doc. 1). For the following reasons, the Court dismisses this action.
BACKGROUND
Plaintiff’s Complaint contains very few facts. Plaintiff, who was seemingly incarcerated at
Ashland FCI, states in a conclusory fashion that he qualified for a CARES Act release between
August 27, 2022, and January 12, 2023. (Doc. 1, at 6). He also states he is a “highly
immunocompromised individual” and the “additional incarceration time” exposed him to COVID-
19 and “toxic black mold.” Id. In the statement of his claim, Plaintiff alleges Defendants (1) failed
to abide by the Attorney General’s Memo regarding prioritizing home confinement in response to
the COVID-19 pandemic and (2) violated 18 U.S.C. §3624(g)(11) (“Prerelease custody capacity”).
Id. Plaintiff seeks damages for each day “held beyond qualifying for a CARES Act release.” Id.
STANDARD OF REVIEW
Plaintiff has filed an application to proceed in this action in forma pauperis. (Doc. 2). The
Court grants that application. Accordingly, because Plaintiff is proceeding in forma pauperis, his
complaint is before the Court for initial screening under 28 U.S.C. § 1915(e)(2).
Pro se pleadings are liberally construed. Boag v. MacDougall, 454 U.S. 364, 365 (1982)
(per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). The district court, however, is required
to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon
which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490
U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when
it is premised on an indisputably meritless legal theory or when the factual contentions are clearly
baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may
be granted when it lacks “plausibility in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007).
A pleading must contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the assumption
that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The plaintiff is not
required to include detailed factual allegations, but he must provide more than “an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause of action will not meet this pleading
standard. Id. The Court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
In reviewing a complaint, the Court must construe the pleading in the light most favorable
to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
DISCUSSION
Plaintiff appears to allege Defendants violated Section 3624 of the First Step Act
(“FSA”) and the CARES Act when he was not released between August 2022 and January 2023.
The BOP has the authority to permit an inmate to serve the end of a term of incarceration
in a community correctional facility or residential reentry center, such as a halfway house, for a
period not to exceed twelve months, or to place an inmate on home confinement for the shorter of
ten percent of the term of imprisonment or six months. 18 U.S.C. § 3624(c)(1) and (2). Section
3624(g) governs prerelease custody or supervised release for risk and needs assessment system
participants. Under this section, an inmate must have been determined to be a minimum or low
recidivism risk for the application of FSA time credits and placement in prerelease custody or early
transfer to supervised release to occur. See 18 U.S.C. § 3624(g)(1)(D)(i) and (ii). And Section
3624(g)(11) provides the BOP Director must “ensure there is sufficient prerelease custody capacity
to accommodate all eligible prisoners.” 18 U.S.C. § 3624(g)(11).
The BOP’s authority was expanded under the Coronavirus Aid, Relief, and Economic
Security (“CARES”) Act, § 12003(b)(2), which provides that “[d]uring the covered emergency
period * * * the Director of the [BOP] may lengthen the maximum amount of time for which the
Director is authorized to place a prisoner in home confinement under the first sentence of section
3624(c)(2) of title 18, United States Code.” CARES Act, Pub. L. 116-136, Div. B., Title II, §
12003(b)(2).
Here, Plaintiff fails to state a claim for relief under Section 3624 of the FSA or the CARES
Act. As an initial matter, Plaintiff fails to meet even the most liberal reading of the Twombly and
Iqbal standard as his pleading fails to include any factual allegations supporting his claim that he
had been determined to be a minimum or low recidivism risk or was otherwise qualified under
Section 3624 of the FSA or the CARES Act for prerelease custody or supervised release. Rather,
the complaint consists solely of one conclusory allegation that he “qualified” for a CARES Act
early release date. See Doc. 1, at 6. The complaint therefore presents the sort of “unadorned, the-
defendant-unlawfully-harmed-me accusation” for which dismissal is required. Iqbal, 556 U.S. at
678.
Additionally, as stated by numerous other district courts, neither the FSA nor the CARES
Act provides a private cause of action. See, e.g., Barnett v. United States, 2022 U.S. Dist. LEXIS
187564, at *7-8 (D. Kan) (stating there is “no indication that a private cause of action exists under
which Plaintiff” may seek compensation for the violation of a purported right to compassionate
release under the FSA); Ealy v. Knoebel, 2019 U.S. Dist. LEXIS 72580, at *5 (E.D. Ky.) (no
private cause of action under the FSA); Azzara v. McFarland, 2019 U.S. Dist. LEXIS 55924, at
*6 (S.D.N.Y.) (“Congress was perfectly capable of passing a law establishing a damages remedy
to enforce the First Step Act. It did not.”); Puckett v. U.S. Dep’t of Treasury IRS, 2021 U.S. Dist.
LEXIS 115607, at *6 (N.D. Ohio) (“The CARES Act did not establish a private right of action to
dispute the IRS’s determination of an individual’s eligibility for the EIP.”); Ortiz v. Bus.
Consumers, 2023 U.S. Dist. LEXIS 30674, at *4 (C.D. Cal.) (“[T]he CARES act does not create
an implied private right of action under which Plaintiffs assert such a claim.”); Radix L. PLC v.
JPMorgan Chase Bank NA, 508 F. Supp. 3d 515, 520 (D. Ariz. 2020) (“[T]here is no private right
of action to enforce the CARES Act.”) (collecting cases); Saloojas Inc. v. Blue Shield of Cal. Life
& Health Ins. Co., 2022 U.S. Dist. LEXIS 180717 (N.D. Cal.) (observing “the overwhelming
majority of district courts to have addressed the issue have found” neither the CARES Act nor
Families First Coronavirus Response Act creates a private right of action) (collecting cases);
Betancourt v. Total Prop. Mgmt., 2022 WL 2359286, at *3 (E.D. Cal.) (“Significantly, courts have
repeatedly determined the CARES Act did not create a private right of action for violations.”)
(collecting cases); Am. Video Duplicating Inc. v. City Nat’l Bank, 2020 WL 6882735, at *5 (C.D.
Cal.) (“Unsurprisingly, every court to address whether the CARES Act created an implied private
right of action has held that it does not.”) (collecting cases); Horvath v. JP Morgan Chase & Co.,
2022 WL 80474, at *5 (S.D. Cal.) (“To the extent that Plaintiff alleges that Defendant violated
various provisions of the CARES Act, Plaintiff does not have a cause of action under the CARES
Act.”) (citations omitted).
Because Plaintiff’s sole ascertainable cause of action and basis for jurisdiction is brought
pursuant to the FSA and the CARES Act, under which no private cause of action lies, Plaintiff
fails to state a claim on which relief may be granted.
To the extent that Plaintiff’s complaint can be construed as a private action for damages
against federal officials alleged to have violated his constitutional rights under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), he fails to state a
claim. Bivens provides a private cause of action where a plaintiff alleges that he was deprived of a
right secured by the United States Constitution by persons acting under color of federal law. See
Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004) (citing Bivens). Liberally construing
the complaint, Plaintiff alleges Defendants violated his right to prerelease custody or early transfer
to supervised release. The United States Supreme Court, however, has held that “[t]here is no
constitutional or inherent right of a convicted person to be conditionally released before the
expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 7 (1979).
Moreover, Bivens provides a cause of action for certain limited constitutional violations:
(1) Fourth Amendment search and seizure; (2) Fifth Amendment gender discrimination; and (3)
Eighth Amendment cruel and unusual punishment. Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55
(2017). And expanding Bivens remedies to other causes of action is “‘disfavored.’” Id. at 1857
(quoting Iqbal, 556 U.S. at 675). Therefore, even assuming Plaintiff has a constitutional right to
prerelease custody or early transfer to supervised release, this claim is not recognized under Bivens.
CONCLUSION
For the foregoing reasons, good cause appearing, it is
ORDERED THAT Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) be, and
the same hereby is, GRANTED; and it is
FURTHER ORDERED that this action be, and the same hereby is DISMISSED under 28
U.S.C. § 1915(e)(2); and the Court
FURTHER CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith.
s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE