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Shah v. Samuels

United States District Court, E.D. Arkansas, Western Division

August 17, 2015

VIVEK SHAH, REG. #43205-424, PLAINTIFF
v.
CHARLES E. SAMUELS, JR., et al., DEFENDANTS

          Vivek Shah, Reg #43205-424, Plaintiff, Pro se, Lexington, KY.

         For 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.

         MEMORANDUM AND ORDER

         JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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

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and Jose Santana, in their official capacities.

         Pending 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).[1] 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).

         II. Complaint

         On 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)

         Danaher's 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)

         Plaintiff 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.)

         Pursuant 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.

         III. Summary Judgment

         Pursuant 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

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(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.

         A. Declaratory Judgment Act/Bivens

         Initially, 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)

         B. APA

         1. Subject ...


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