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Forrester v. Federal Bureau of Prisons

September 12, 2007

CHARLES E. FORRESTER, JR, PLAINTIFF,
v.
FEDERAL BUREAU OF PRISONS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Plaintiff, proceeding pro se, is a District of Columbia prisoner incarcerated at the United States Bureau of Prisons' Rivers Correctional Institution ("RCI") in Winton, North Carolina. He challenges on constitutional and statutory grounds the denial of his requests to participate in two vocational programs by prison officials in March 2006. Plaintiff seeks injunctive and declaratory relief. Defendants move to dismiss pursuant to Fed. R. Civ. P. 12 (b)(1) and (b)(6).*fn1 Upon consideration of the parties' submissions and the entire record, the Court will grant defendants' Rule 12(b)(6) motion but will defer further action pending record supplementation on an overlooked claim.*fn2

1. Plaintiff Fails to State a Claim Against the Individual Defendants

Invoking 42 U.S.C. § 1983, plaintiff sues the Bureau of Prisons ("BOP") and the following BOP employees in their official and individual capacities: Director Harley Lappin, Contracting Officer Scott P. Stermer, National Inmate Appeals Administrator Harrell Watts and "Senior Secure Institution Manager" Thomas R. Christensen who plaintiff also identifies as the "On-site Bureau of Prisons Representative." Compl. Caption. By its terms, § 1983 does not apply to federal officials acting under federal law. Settles v. United States Parole Commission, 429 F.3d 1098, 1104 (D.C. Cir. 2005). " A Bivens action is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983," however. Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)). The court therefore considers plaintiff's claim against the individual defendants to be brought under Bivens.

Bivens "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001); see Wilson v. Layne, 526 U.S. 603, 609 (1999) ("Both Bivens and § 1983 allow a plaintiff to seek money damages from government officials who have violated [constitutional] rights."); 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). Under Bivens, "it is damages or nothing." Davis v. Passman, 442 U.S. 228, 245 (1979) (citation and internal quotation marks omitted). Plaintiff does not seek to recover money damages. He therefore has failed to state a claim against the individual defendants for which relief may be granted.

2. Plaintiff Fails to State Constitutional Claims

The remaining claims are for injunctive and declaratory relief against the United States. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (an official-capacity lawsuit is in effect against the sovereign); accord Mason v. Judges of U.S. Court of Appeals for District of Columbia Circuit in Regular Active Service Acting in Their Official Capacities, 952 F.2d 423, 425 (D.C. Cir. 1991) cert. denied, 508 U.S. 829 (1992).

Plaintiff alleges that on March 12, 2006, he requested to participate in the Air Conditioning, Heating & Refrigeration Technology vocational program ("HVAC") but was denied "based on an age and residence restriction." Compl. at 5. On March 20, 2006, plaintiff requested to participate in the Custodial Maintenance vocational program but was denied because the program was inactive. Id. He claims that these decisions violated his constitutional rights under the Fifth Amendment's due process and equal protection clauses and his regulatory right as an inmate "to participate in education, vocational training and employment" programs. 28 C.F.R. § 541.12(10).*fn3

A. The Due Process Claim

The due process clause is implicated when the government deprives an individual of life, property or liberty. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989). In identifying a liberty interest, courts may look to the Constitution or statutory law. Ellis v. District of Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996). In a prison setting, however, liberty interests are "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force [, e.g., a transfer to a mental hospital or the involuntary administering of psychotropic drugs,] nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted); accord Franklin v. District of Columbia, 163 F.3d 625, 631 (D.C. Cir. 1998). Thus, prisoners do not have a due process right to participate in vocational and educational programs, let alone one of their choosing.*fn4 Women Prisoners of District of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910, 927 (D.C. Cir. 1996) (citing Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988)) (inmates do not have a constitutional right to work and educational opportunities); accord Tanner, 433 F. Supp.2d at 122 -23) (citing Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000)) (other citations omitted).

In the absence of a demonstrated liberty interest, plaintiff may not proceed on his due process claim.

B. The Equal Protection Claim

To establish an equal protection claim, a plaintiff must allege that the government intentionally discriminated against him as a member of a protected class, see Personnel Adm'r v. Feeny, 442 U.S. 256 (1979), or absent assertions of being a member of a protected class, that the government treated him differently than another similarly situated individual or group. Women Prisoners, 93 F.3d at 924; Dumaguin v. Secretary of Health and Human Services, 28 F.3d 1218, 1222 (D.C. Cir. 1994), cert. denied, 515 U.S. 827 (1995).

The record establishes that plaintiff, a 45-year-old resident of Maryland, was denied participation in HVAC because the program is limited to District of Columbia residents between the ages of 18 and 25. Compl. Ex. 6, Attach. 2. Plaintiff claims that his exclusion from the program on these bases violates the equal protection clause. Plaintiff's asserted classifications of age and residency do not fall within the suspect class category protected by the Constitution. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000) ("age is not a suspect classification under the Equal Protection Clause") (citations omitted); United States v. Virginia, 518 U.S. 515, 533 (1996) ("The Court has thus far reserved most stringent judicial scrutiny for classifications based on race or national origin.") (examining gender classification). Thus, "[t]here is no right under the equal protection clause . . . to be free from age discrimination . . . so long as such discrimination is rationally related to furthering a legitimate state interest." Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467, 473 (1st Cir. 1990). See Hutchins v. District of Columbia, 188 F.3d 531, 563 (D.C. Cir. 1999) (under equal protection analysis "strict scrutiny applies to burdens on fundamental rights, while rational basis scrutiny applies to burdens on rights that do not qualify as fundamental"); American Federation of Government Employees (AFL-CIO) v. U.S., 195 F. Supp.2d 4, 11-12 (D.D.C. 2002) (examining the three levels ...


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