"'Bivens actions are for damages," the payment of which a losing defendant is personally responsible
How later courts described this case
- "'Bivens actions are for damages," the payment of which a losing defendant is personally responsible
- attack on the constitutionality of the statute under which defendant was sentenced is properly pursued by motion under 28 U.S.C. § 2255
Written by the judges who cited it.
The opinion
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FILED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SEP 2 1 2011
cClerk, u.s. District & Bankruptcy
ourts for the Dlstrfct Of ColumbIa
Brian Davis, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1433 (UNA)
)
United States Sentencing Commission, )
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on its initial review of plaintiff s pro se complaint and
application to proceed in forma pauperis. The application will be granted and the complaint will
be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the
court to dismiss an action "at any time" it determines that subject matter jurisdiction is wanting).
Plaintiff is a prisoner at the McKean Federal Correctional Institution in Bradford,
Pennsylvania. He sues the United States Sentencing Commission under the Declaratory
Judgment Act, 28 U.S.c. § 2201(a), and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff challenges, on equal protection grounds, the
constitutionality of the Sentencing Commission's "policy statement barring relief of recent
guideline changes in crack cocaine sentencing to a specific group of ... offenders ... [and] the
ineligibility of a specific group of crack cocaine offenders to benefit from the Fair Sentencing
Act .... " Am. Compl. at 1,4-5.
The Sentencing Commission is "an independent commission in the judicial branch of the
United States." 28 U.S.C. § 991(a). Bivens "recognized for the first time an implied private
action for damages against federal officers [in their personal capacity] alleged to have violated a
citizen's constitutional rights." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
Under Bivens, "it is damages or nothing." Davis v. Passman, 442 U.S. 228, 245 (1979) (citation
and internal quotation marks omitted); accord Simpkins v. District of Columbia Government, 108
F.3d 366,369 (D.C. Cir. 1997) ("'Bivens actions are for damages," the payment of which a losing
defendant is personally responsible). Plaintiff has not sued any individuals, and he does not seek
monetary damages. Therefore, his purported Bivens claim "constitute[ s] the sort of patently
insubstantial claim[]" that is subject to dismissal for want of subject matter jurisdiction. Tooley
v. Napolitano, 586 F.3d 1006, 1010 (D.C. Cir. 2009); see Caldwell v. Kagan, 777 F. Supp.2d
177, 178 (D.D.C. 2011) C"A district court lacks subject matter jurisdiction when the complaint 'is
patently insubstantial, presenting no federal question suitable for decision.' ") (quoting Tooley,
586 F.3d at 1009).
In addition, the Court lacks jurisdiction to entertain an action for a declaratory judgment
when, as here, an adequate remedy is available by petitioning the sentencing court for a writ of
habeas corpus. Rooney v. Sec'y of Army, 405 F.3d 1029, 1031 (D.C. Cir. 2005) (citing LoBue v.
Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996»; see Taylor v. United States Board of Parole,
194 F.2d 882, 883 (D.C. Cir. 1952) (attack on the constitutionality of the statute under which
defendant was sentenced is properly pursued by motion under 28 U.S.C. § 2255). Because
plaintiff was sentenced by the United States District Court for the Northern District of Texas,
Am. CompI. at 5, this Court would lack jurisdiction over his habeas petition. A separate Order of
dismissal accompanies this Memorandum Opinion.
Date: September LJ-, 2011
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