United States District Court, E.D. Arkansas, Western Division
VIVEK SHAH, REG. #43205-424, PLAINTIFF
CHARLES E. SAMUELS, JR., et al., DEFENDANTS
Shah, Reg #43205-424, Plaintiff, Pro se, Lexington, KY.
Charles E Samuels, Jr, D.S.C.C. Administrator, sued in his
official capacity, USA, Jose A Santana, DSCC Administrator
(originally named as Doe), Defendants: Richard M. Pence, Jr.,
LEAD ATTORNEY, U.S. Attorney's Office, Eastern District
of Arkansas, Little Rock, AR.
T. KEARNEY, UNITED STATES MAGISTRATE JUDGE.
Vivek Shah is a federal inmate incarcerated at the Lexington
Federal Medical Center (FMC), Lexington, Kentucky. While
incarcerated at the Federal Correctional Institution (FCI),
Forrest City, Arkansas, he filed this action pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Administrative
Procedure Act, 5 U.S.C. § 701 et seq., and the
Declaratory Judgment Act, 18 U.S.C. § 201, seeking
declaratory and injunctive relief challenging his
classification. (Doc. No. 1) He names as Defendants the
United States of America, and Charles Samuels
and Jose Santana, in their official capacities.
before the Court is the Defendants' Motion to Dismiss
(Doc. No. 29), which this Court converted to a Motion for
Summary Judgment by Order dated May 13, 2015 (Doc. No.
55). Following a short stay of these
proceedings while Plaintiff was transported to the FMC, the
parties submitted additional briefs in support of their
respective positions (Doc. Nos. 63, 76).
September 11, 2013, Plaintiff was sentenced to 87 months'
imprisonment for transmitting threats with intent to extort
in interstate commerce, and mailing threatening
communications, in violation of 18 U.S.C. § § 875,
876. (Doc. No. 1, p. 3) He was transported to FCI, Forrest
City, where he underwent a custody/classification review.
(Id.) At that review, Plaintiff was classified as a
low security risk due to his offense conduct, although
according to the Bureau of Prison's (BOP) Program
Statement P5100.08, he should have been classified as a
minimum security risk. (Id.) In classifying
Plaintiff as a low security risk (higher than minimum)
Plaintiff's case manager, Michael Danaher, applied for a
Management Variable (MGTV), which allows staff to ensure an
inmate's placement in the most appropriate level
institution when placement is initially made at a level
inconsistent with the inmate's security score. (Id., p.
4, citing P5100.08)
decision to apply for the MGTV in Plaintiff's case was
based on the fact that Plaintiff's offense involved
mailing a series of threatening letters to various wealthy
and prominent individuals,which contained threats of death to
a family member unless the recipient paid a sum of money.
(Id., p. 5) Although Plaintiff provided Danaher reliable
sources of information that showed he was not a greater
security risk, together with the government's statement
in Plaintiff's sentencing memorandum that Plaintiff did
not form the intent to physically harm or kill anyone, but
intended only to frighten his victims, Danaher applied for
the MGTV. (Id.) Plaintiff complained about the
application of the variable by filing an administrative
remedy (grievance)with the Warden, which was rejected, as
were his appeals to the regional and central offices of the
BOP. (Id., p. 6)
claims that if the greater security MGTV is removed, he would
be classified as minimum security and as " out and
community," which would permit him to work outside of
the institution, in community-based programs, at off-site
public works or volunteer community service projects, and
eligible for furloughs and other liberties. (Id., p. 7)
Presently, however, Plaintiff is classified as low security
with a classification of " in." (Id.)
to the APA, Plaintiff challenges the application of the MGTV
to raise his classification levels, claiming the action was
unjustified, unwarranted and unreasonable. (Id., p. 9) He
also claims the APA is unconstitutional and that the
application of the MGTV violated his First Amendment right to
access to the courts, and the Tenth Amendment.
to Fed.R.Civ.P. 56(a), summary judgment is appropriate if the
record shows that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. See Dulany v. Carnahan, 132 F.3d 1234, 1237
(8th Cir. 1997). " The moving party bears the initial
burden of identifying 'those portions of the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact.'" Webb v. Lawrence County, 144 F.3d
1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986) (other citations omitted)). " Once the moving
party has met this burden, the non-moving party cannot simply
rest on mere denials or allegations in the pleadings; rather,
the non-movant 'must set forth specific facts showing
that there is a genuine issue for trial.'"
Id. at 1135. Although the facts are viewed in a
light most favorable to the non-moving party, " in order
to defeat a motion for summary judgment, the non-movant
cannot simply create a factual dispute; rather, there must be
a genuine dispute over those facts that could actually affect
the outcome of the lawsuit." Id.
Declaratory Judgment Act/Bivens
the Court notes, and Plaintiff agreed in his Response to
Defendants' Motion to Dismiss (Doc. No. 37), that the
Declaratory Judgment Act does not confer subject matter
jurisdiction over Plaintiff's complaint, and provides a
remedy only where jurisdiction already exists. 28 U.S.C.
§ § 2201-2202; Missouri v. Cuffley, 112
F.3d 1332, 1334 (8th Cir. 1997). In addition, Plaintiff
cannot maintain a Bivens action in this case because a Bivens
action cannot be brought against the United States, its
agencies, or its government officials who are sued in their
official capacities. FDIC v. Meyer, 510 U.S. 471,
484-6, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In this case,
Plaintiff sued Defendants Samuels and Santana in their
official capacities only. (Doc. No. 1, p. 2)