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Marshall v. Federal Bureau of Prisons

October 30, 2007

GERALD L. MARSHALL, 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 Gerald L. Marshall, 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.*fn1 He seeks to compel the Bureau of Prisons ("BOP") "to provide [him] with the same marketable vocational opportunities . . . [it provides] to similarly situated District of Columbia offenders housed in [] federal facilities." Plaintiff's Memorandum of Law in Support of His Complaint Under the Civil Rights Act, 42 U.S.C. § 1983 ("Pl.'s Mem.") [# 1] 2. Marshall also seeks a declaratory judgment "defining [his statutory and regulatory] rights." Id. Defendants move to dismiss pursuant to Fed. R. Civ. P. 12 (b)(1) and (b)(6). Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that defendants' motion must be granted because Marshall fails to state a claim upon which relief can be can be granted.*fn2

I. BACKGROUND

Marshall sues BOP and certain BOP employees in their official and individual capacities. The individual defendants are Director Harley Lappin, Contracting Officer Scott P. Stermer, National Inmate Appeals Administrator Harrell Watts and "Secure Institution Manager" Thomas R. Christensen, whom Marshall also identifies as the "On-site BOP" representative. Compl. Form iv. Marshall alleges that on March 29, 2006, he requested to participate in the Air Conditioning, Heating & Refrigeration Technology vocational program ("HVAC") at RCI but was denied participation at no charge because he did not meet the program's age restriction of 18 to 25 years. Pl.'s Mem. 8-9, Exs. C-G. Marshall was advised that he could attend the course if spaces were available for non-qualifying participants but for a fee, "which may include out-of-state tuition and books."*fn3 Pl.'s Ex. G. Marshall claims that because the HVAC program is one of two left available to him,*fn4 BOP is depriving him of due process, Pl.'s Mem. ¶ 10, and equal protection of the laws, id., ¶ 15, in violation of 42 U.S.C. § 1983 and D.C. Code § 24-101.*fn5 He seeks to be transferred to a facility that will permit him to "further [his] educational and vocational programs without cost [or residency] restrictions." Pl.'s Mem. 15.

II. ANALYSIS

A. Marshall Fails to State a Claim Against the Individual Defendants

By its terms, § 1983 does not apply to federal officials acting under federal law. Settles v. United States Parole Comm'n, 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 Fed. Bureau of Narcotics, 403 U.S. 388 (1971)). The court therefore considers Marshall'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." Corr. Serv. 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 Gov't, 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). Marshall 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.

B. Marshall Fails to State Constitutional Claims Against the United States

Marshall's remaining claims against the individual defendant in their official capacity operate as claims 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.Ct. of App. for the D.C. Circuit, 952 F.2d 423, 425 (D.C. Cir. 1991), cert. denied, 508 U.S. 829 (1992). Marshall claims that he was deprived of his right to due process of law and equal protection of the law.

1. 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 Corr. 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. Women Prisoners of District of Columbia Dept. of Corr. 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 v. Fed. Bureau of Prisons, 433 F. Supp. 2d 117, 122-23 (D.D.C. 2006) (citing Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000)) (other citations omitted).

The fact that Marshall has completed all other programs and, thus, is currently unable to earn educational credit, Pl.'s Mem. 13, does not trigger due process considerations because the availability of a program would only provide the opportunity for Marshall to earn educational credit. Thus, a liberty interest is not at stake "because it is not inevitable that [the plaintiff] would complete an educational program and earn benefits derived from the program." Tanner, 433 F. Supp.2d at 123 (quoting Zimmerman, 226 F.3d at 572) (other citation omitted) (brackets in original). Moreover, the unavailability of a program at a particular ...


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