Morris v. United States Sentencing Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES ALLEN MORRIS, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1387 (RC)
)
)
UNITED STATES SENTENCING )
COMMISSION et al., )
)
Defendants. )
MEMORANDUM OPINION
Plaintiff, a federal prisoner, commenced this action from the Federal Prison Camp in
Millington, Tennessee. He sues the United States Sentencing Commission, United States
Attorney General Eric Holder, United States Attorney for the Northern District of Mississippi
Felicia Adams, and Assistant United States Attorney Scott Leary. Plaintiff seeks to hold the
defendants liable for “the operation” of certain provisions of the U.S. sentencing guidelines that
he claims “discriminate against Blacks and Career Offenders.” Complaint for Violation of Civil
Rights (“Compl.”), ECF No. 1, at 5. He seeks $100,000 in monetary damages and declaratory
relief. Id.
Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(4) for insufficient
process, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon
which relief can be granted. 1 See Mot. to Dismiss, ECF No. 9. Plaintiff has opposed the motion,
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Plaintiff is proceeding in forma pauperis and, thus, relying on the court officers to “issue and
serve all process, and perform all duties . . . .” 28 U.S.C. § 1915(d). When, in such proceedings,
the propriety of service is challenged in a motion to dismiss, the court typically would give
plaintiff the opportunity to provide additional information to cure any service deficiencies before
1
ECF No. 13, and has moved to transfer the case, ECF No. 12. Defendant has replied, ECF No.
14, and plaintiff was permitted to file a surreply, ECF No. 16. Since plaintiff’s claim against
Attorney General Holder fails and the remaining claims are foreclosed by certain immunities, the
Court will grant defendants’ motion to dismiss, deny plaintiff’s motion to transfer, and dismiss
this case.
I. BACKGROUND
In March 2003, plaintiff pleaded guilty in the U.S. District Court for the Northern District
of Mississippi to distribution of more than five grams of cocaine base (“crack cocaine”) and
being a felon in possession of a firearm. See Morris v. Sentencing Comm’n, No. 13-1150, 2013
WL 3930001 (D.D.C. July 29, 2013) (quoting Morris v. Outlaw, No. 2:09-cv-0025, 2009 WL
2762461, at *1 (E.D.Ark. Aug. 26, 2009)). Plaintiff was sentenced to concurrent prison terms of
230 months for the drug conviction and 120 months for the firearms conviction, followed by five
years of supervised release. Id. “Since [plaintiff] was considered a career offender, [he] was
subject to the career offender section 4B1.1(b) of the sentencing guidelines. As a result,
[plaintiff’s] criminal history category and offense level were determined by the career offender
guideline and not the quantity of drugs attributable to him.” Morris v. United States, No.
2:04CR74-WAP, 2007 WL 2916550, at *1 (N.D. Miss. Oct. 5, 2007).
Plaintiff has attempted unsuccessfully to reduce his sentence pursuant to 28 U.S.C. §
2255 (habeas) and 18 U.S.C. § 3582(c) (sentence modification). See Defs.’ Mem. in Supp. of
Mot. to Dismiss at 2-3 (setting out unrefuted litigation history). Undeterred, plaintiff has brought
this action to challenge his inability, as a career offender, to benefit from the amendments to the
federal sentencing guidelines that lowered the base offense levels for crack cocaine offenses.
See id. at 5-6 (discussing amendments).
dismissing the case under either Rule 12(b)(4) or Rule 12(b)(5). The dismissal of this case on
defendants’ other asserted grounds renders this step unnecessary.
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Plaintiff sets forth the following six statements in support of his claims:
(1) The Sentencing Commission, et al, did use their seats to
discriminate against Blacks and Career Offenders by promulgating policy
statements to deny them (this plaintiff) the benifit[sic]/lenity of the crack
amendments reductions.
(2) The enactment of the ‘operation of another guideline’ policy
statement transforms the career offender enhancement into a separate
offense (bill of pains) instead of an enhancement to the predicate crack
offense.
(3) The ‘operation of another guideline’ authorizes a defacto [sic]
resentencing which violates established sentencing laws and the 5th, 14th, 6th
and 8th amendments.
(4) The ‘operation of another guideline’ is substantive and can not [sic]
be applied retroactive to plaintiff.
(5) Eric Holder, et al, have conspired to use the ‘operation of another
guideline’ to prevent plaintiff eligibility for a possible sentencing reduction.
Defendants know the operation of another guideline is a violation of due
process when it is used to defacto resentence in 18 USCS 3582 c 2
proceedings.
(6) The defendants et al, are subjecting plaintiff to cruel and unusual
punishment, discrimination, and vindictive prosecution by arguing that his
crack sentence should be held to the 100 to 1 ratio because of the ‘operation
of another guideline’ notwithstanding the majority of congress has
acknowledged the arbitrariness and unfairness in the 100 to 1 ratio by
changing that ratio to, first to a 2-points reduction and finally to the 18 to 1
ratio.
Compl. at 5-6.
II. LEGAL STANDARDS
1. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court
of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is the
plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on the Court's power to hear a claim, the
Court must give the plaintiff's factual allegations closer scrutiny than would be required in
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deciding a Rule 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the Court is not limited
to the allegations contained in the complaint. See Wilderness Soc'y v. Griles, 824 F.2d 4, 16
n.10 (D.C. Cir. 1987).
2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendant fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.
Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the
complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See,
e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not
necessary for the plaintiff to plead all elements of a prima facie case in the complaint. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25,
28-29 (D.D.C. 2010).
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This means that a plaintiff's factual 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).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are
therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not
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accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the
legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. In
deciding a motion to dismiss under Rule 12(b)(6), the Court may take judicial notice of facts
litigated in a prior related case. See Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 49-
50 (D.D.C. 2012).
III. DISCUSSION
A. Claims for Money Damages
1. Subject Matter Jurisdiction
Sovereign immunity shields the federal government and its agencies from suit and is
“jurisdictional in nature.” American Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72,
79 (D.D.C. 2012) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted).
The government may waive immunity, but such a waiver “must be unequivocally expressed in
statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations
omitted); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the
United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.”). To survive a motion to dismiss under Rule 12(b)(1), “[t]he
plaintiff bears the burden of establishing both the court's statutory jurisdiction and the
government's waiver of its sovereign immunity.” American Road & Transp. Builders Ass’n, 865
F. Supp. 2d at 80 (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Tri–
State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003); Jackson v. Bush,
448 F. Supp. 2d 198, 200 (D.D.C. 2006)).
Defendants argue that the Sentencing “Commission, like all federal agencies, enjoys the
benefits of sovereign immunity.” Defs.’ Mem. of P. & A. at 23-24. But the Commission is not
an agency. It is “an independent commission in the judicial branch of the United States.”
Mistretta v. U.S., 488 U.S. 361, 368 (1989). As the Supreme Court has observed, “[t]he
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Sentencing Commission unquestionably is a peculiar institution within the framework of our
Government. Although placed by the [Sentencing Reform] Act [SRA] in the Judicial Branch, it
is not a court and does not exercise judicial power.” Id. at 384-85. The Commission’s enacting
statute, 28 U.S.C. §§ 991-98, requires it to comply with the Administrative Procedure Act’s
(“APA”) rulemaking provisions applicable to agencies. See 28 U.S.C. § 994(x) (“The provisions
. . . relating to publication in the Federal Register and public hearing procedure, shall apply to the
promulgation of [sentencing] guidelines.”). But the Court of Appeals has “held that by explicitly
including the APA's notice and comment provisions in the SRA, Congress implicitly recognized
that the rest of the APA would not apply to the Commission because it is a part of the judicial
branch.” Washington Legal Foundation v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C.
Cir. 1994) (citing United States v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991)).
Regardless, the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, waives the
sovereign’s immunity as to certain enumerated claims for money damages, and as used in the
FTCA, “the term ‘Federal agency’ includes . . . the judicial and legislative branches [and]
independent establishments of the United States . . . .” 28 U.S.C. § 2671. It is reasonably safe to
conclude that this broadly worded definition covers the Sentencing Commission. In FTCA
cases, the United States is substituted as the proper defendant. The United States has not
consented to be sued for damages based on constitutional violations. Meyer, 510 U.S. at 476-78.
Nor has it consented to be sued for damages based on “the failure of the United States to carry
out a federal statutory duty in the conduct of its own affairs,” Hornbeck Offshore Transp., LLC v.
U.S., 569 F.3d 506, 510 (D.C. Cir. 2009) (citation and internal quotation marks omitted), such as
the duty of the Commission to “promulgate and distribute” federal sentencing guidelines. 28
U.S.C. § 994. Furthermore, the SRA does not contain a “sue-and-be sued clause,” which might
constitute a waiver of immunity by the Commission as an agency capable of being sued in its
own name. See Meyer, 510 U.S. at 481 (“[A]gencies authorized to ‘sue and be sued’ are
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[generally] presumed to have fully waived immunity.”) (citation and internal quotation marks
omitted). Hence, the claim against the Sentencing Commission for money damages is dismissed
on sovereign immunity grounds. 2
2. Failure to State a Claim
The form complaint cites 42 U.S.C. § 1983 as the basis of jurisdiction but defendants
argue correctly that this statute does not apply to federal defendants, Defs.’ Mem. of P. & A. at
14-15, and plaintiff seems to agree. See Pl.’s Surreply at 1 (“Morris do[es] not seek relief under
[section] 1983 . . . .”) In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), the Supreme Court recognized an analogous private cause of action against
federal officials who “may be held personally liable . . . for unconstitutional conduct in which
[they were] personally and directly involved.” Staples v. U.S., 948 F. Supp. 2d 1, 3 (D.D.C.
2013) (citing Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993)). 3
Attorney General Holder
To state a claim under Bivens, “a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676. Consequently, high-level officials, such as Attorney General Holder, typically
are not subject to Bivens liability since they do not routinely participate personally in decisions
about a particular individual at a particular location. See Iqbal at 676-77 (respondeat superior
and vicarious liability theories found inapplicable to Bivens claim); see also Farmer v.
2
Regardless, even if an FTCA claim were appropriate under the circumstances, plaintiff has
failed to show that he has exhausted his administrative remedies by "first present[ing] the claim
to the appropriate Federal agency. . . ." 28 U.S.C. § 2675. This exhaustion requirement is
jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per
curiam) (affirming the district court’s dismissal of unexhausted FTCA claim “for lack of subject
matter jurisdiction”).
3
Plaintiff has not named any individual defendants at the Sentencing Commission.
7
Moritsugu, 163 F.3d 610, 615-16 (D.C. Cir. 1998) (explaining why the then-Medical Director
could not be held personally liable for medical decisions made at a BOP facility).
Plaintiff’s conclusory allegation that Holder engaged in some sort of conspiracy with the
Sentencing Commission in the “operation” of the guidelines is not supported by facts alleged in
the complaint. See Gorbey v. United States, 309 Fed.Appx. 425 (D.C. Cir. 2009) (per curiam)
(affirming dismissal of complaint containing “only conclusory and unsubstantiated allegations of
conspiratorial conduct”). In addition, plaintiff has not alleged, nor could he credibly do so, that
Holder participated directly in the local proceedings in which he has sought to have the amended
crack cocaine guidelines applied to him. Hence, the Bivens claim against Holder is dismissed.
The Mississippi Defendants
As for the remaining defendants in Mississippi, U.S. Attorney Adams and Assistant U.S.
Attorney Leary, the Court agrees that they are shielded by absolute immunity. See Defs.’ Mem.
of P. & A. at 15-17. “[A]bsolute immunity[] is a complete bar to any lawsuit against a
government official based on tasks the official performed that were within the scope of his
duties.” Pate v. U.S., 277 F. Supp. 2d 1, 7 (D.D.C. 2003) (citing Wagshal v. Foster, 28 F.3d
1249, 1252 (D.C. Cir. 1994)). Although initially applicable to judges, absolute immunity has
been extended to “a wide range of persons playing a role in the judicial process, including
prosecutors.” Id. (citations and internal quotation marks omitted).
Not all acts performed by prosecutors are protected; rather, “[l]ike judicial immunity,
absolute prosecutorial immunity turns on the function performed by the prosecutor. Absolute
immunity is granted only for conduct ‘intimately associated with the judicial phase of the
criminal process.’ ” Atherton v. District of Columbia, 567 F.3d 672, 683 (D.C. Cir. 2009)
(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). In addressing an absolute immunity
argument, “courts look to whether the particular activity in dispute was performed by a
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prosecutor in his or her official capacity as an advocate for the state in the course of judicial
proceedings.” Id. (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997)).
Plaintiff’s cryptic allegations are difficult to follow but it is reasonably safe to conclude
that they stem from the U.S. Attorney’s arguments made as the government’s advocate in post-
conviction proceedings. Such conduct falls squarely within the prosecutorial function. See
Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993) (“[A]ppearing before a judge and presenting
evidence in support of a motion for a search warrant involved the prosecutor's ‘role as advocate
for the State.’ ”) (quoting Burns v. Reed, 500 U.S. 478, 491 (1991)) (other citation omitted). 4
Hence, the Bivens claims against Adams and Leary are dismissed on absolute immunity
grounds. 5
B. Claim for Declaratory or Injunctive Relief
“It is a ‘well-established rule that the Declaratory Judgment Act is not an independent
source of federal jurisdiction.’ Rather, ‘the availability of [declaratory] relief presupposes the
existence of a judicially remediable right.’ ” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011)
(quoting C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201
(D.C. Cir. 2002) (other citations omitted). The APA waives the sovereign’s immunity “to the
extent that declaratory judgment or other equitable relief may be available” to a person harmed
by agency action. Ballard v. Holinka, 601 F. Supp. 2d 110, 121 (D.D.C. 2009) (citing 5 U.S.C. §
702). But, as discussed above, the APA’s remedial provisions do not apply to the Sentencing
4
Moreover, assuming the United States Attorney did not personally direct the litigation
involving plaintiff’s case, she would still be entitled to absolute immunity in her supervisory role
over such litigation. See generally Van de Kamp v. Goldstein, 555 U.S. 335 (2009).
5
Since the absolute immunity defense disposes of the claims against the Mississippi
defendants, the Court will not address their equally persuasive argument for dismissal based on
lack of personal jurisdiction, see Defs.’ Mem. of P. & A. at 11-14, and it notes the futility of
transferring the “claims against U.S. Attorney Adam and AUSA Leary . . . .” Pl.’s Mot. to
Transfer at 1.
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Commission “because it is a part of the judicial branch.” Washington Legal Foundation, 17 F.3d
at 1450.
Regardless, plaintiff’s claim for declaratory relief is foreclosed. First, “it is well-settled
that a prisoner seeking relief from his . . . sentence may not bring such an action” when he seeks,
such as here, immediate or speedier release from prison, because his sole federal remedy is a writ
of habeas corpus. 6 Will. v. Hill, 74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam); see
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding same). Second, plaintiff’s declaratory
relief claim also fails because the court that sentenced plaintiff and the United States Court of
Appeals for the Fifth Circuit have both rejected plaintiff’s premise in habeas and other collateral
proceedings. In addressing plaintiff’s claim that his offense level was erroneously increased
because the pre-sentence investigation report (“PSI”) “attributed to him a higher quantity of
drugs than represented in the plea agreement,” the sentencing court concluded:
The simple and undeniable fact is that the drug quantity disputed by
[plaintiff] had no effect on the calculation of either his criminal history
category or his offense level. Rather, both [calculations] were established
by the guidelines based on [plaintiff’s] status as a career offender. Neither
the drug quantity used in the plea agreement nor the quantity used in the
PSI had an effect on the computation of [plaintiff’s] permissible sentencing
range.
Morris, 2007 WL 2916550, at *2. And, in dismissing one of plaintiff’s appeals as frivolous, the
Fifth Circuit found his “assertion that he was not sentenced as a career offender [] incorrect” and
confirmed that “[t]he crack cocaine guidelines amendments do not apply to prisoners sentenced
as career offenders.” United States v. Morris, No. 13-60271 (5th Cir. Nov. 11, 2013) (per
curiam) (quoting United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009) (internal quotation
6
This Court could not hear a habeas claim because it does not have personal jurisdiction over
plaintiff’s warden. See Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004)
("[A] district court may not entertain a habeas petition involving present physical custody unless
the respondent custodian is within its territorial jurisdiction.") (citation omitted).
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marks omitted). 7 The Court lacks subject matter jurisdiction to review the foregoing decisions,
see 28 U.S.C. §§ 1331, 1332 (general jurisdictional provisions); Fleming v. United States, 847 F.
Supp. 170, 172 (D.D.C. 1994), cert. denied 513 U.S. 1150 (1995), and otherwise finds that
plaintiff has stated no claim for declaratory relief.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss the case under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) is granted, and plaintiff’s motion to transfer is denied. A
separate Order accompanies this Memorandum Opinion.
________/s/____________
RUDOLPH CONTRERAS
United States District Judge
Date: July 31, 2014
7
The Fifth Circuit’s conclusion is consistent with that of other circuit courts of appeal. See
United States v. Mateo, 560 F.3d 152, 155 (3rd Cir. 2009) (joining “many of our sister circuits in
[] holding” that Amendment 706 lowering the crack cocaine sentencing range “ simply ‘provides
no benefit to career offenders’ ”) (quoting United States v. Forman, 553 F.3d 585, 589 (7th Cir.
2009) (per curiam)) (citing cases from the First, Eighth, and Eleventh circuits).
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