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Neal v. Watts

March 17, 2008

DENARD DARNELL NEAL, PLAINTIFF,
v.
HARRELL WATTS, DEFENDANT.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's motion to dismiss. Because all claims against Mr. Watts are barred, the Court will grant the motion and dismiss this action with prejudice.

I. BACKGROUND

Plaintiff is a federal prisoner who currently is incarcerated at the Federal Correctional Complex in Coleman, Florida. He brings this civil rights action against Harrell Watts, the National Inmate Appeal Administrator for the Federal Bureau of Prisons ("BOP"), in his official and individual capacities. Complaint ("Compl.") at 7 ¶¶4-5.

A. Inmate Financial Responsibility Program

BOP's Inmate Financial Responsibility Program ("IFRP") is a means for a sentenced inmate to meet his financial obligations, including restitution, using wages earned from prison employment. See 28 C.F.R. §§ 545.10, 545.11. BOP staff determine the amount of an inmate's payments and monitor his progress. See 28 C.F.R. § 545.11(a), (b). Although BOP merely encourages an inmate's participation in the program, see 28 C.F.R. § 545.10, an inmate who refuses to participate ordinarily loses certain privileges. See 28 C.F.R. § 545.11(d). For example, a non-participating inmate "shall be subject to a monthly commissary spending limitation more stringent than the monthly commissary spending limitation set for all inmates." 28 C.F.R. § 545.11(d)(6).

Plaintiff is serving a term of 55 years and 5 months' imprisonment imposed by the United States District Court for the District of Arizona on his conviction by jury on three counts of bank robbery and three counts of using a firearm in a crime of violence. See United States v. Neal, 976 F.2d 601, 601-02 (9th Cir. 1992). The Judgment & Commitment Order directs plaintiff to pay restitution. Compl. at 4 ¶3. Plaintiff alleges that he "has not and will not volunteer for" participation in the IFRP. Compl. at 4 ¶5. According to plaintiff, the IFRP is "a means of retaliation" against him and allows BOP staff to "impose sanctions . . . without affording Plaintiff any type of due process." Id. Here, plaintiff objects to the imposition of his spending limit at the prison commissary. See id., Ex. (Central Office Administrative Remedy Appeal No. 410752 and National Inmate Appeal Administrator's Response). He alleges that defendant "is trying to sue [sic] force, extortion as a means to force Plaintiff into giving the [BOP] property . . . that is own[ed] by Plaintiff. Id. at 3 ¶2.

B. Tuberculosis Testing

Tuberculosis screening tests are mandatory at BOP facilities for all federal inmates. See Compl., Ex. (National Inmate Appeals Administrator Response to Administrative Remedy No. 359607-A1); see also Program Statement 6190.02, Infectious Disease Management (6/28/2005) at 7-10. Plaintiff alleges that medical staff at FCC Coleman "harass Plaintiff because Plaintiff has refuse[d] to allow the injection of the dangerous T.B. test, also know[n] as a PPD test, TUBERCULOSIS." Compl. at 5 ¶10 (emphasis in original). Plaintiff objects to the PPD test on religious grounds, and offers in the alternative to submit to a chest x-ray. Id. at 5 ¶16.

For these alleged violations of rights protected under the Fifth and Eighth Amendments to the United States Constitution, plaintiff demands an order directing defendant or his successor "to cease [] all injection(s) of dangerous chemicals (T.B. test) into [Plaintiff's] body," Compl. at 7 ¶5, and an award of compensatory and punitive damages. Id. at 7 ¶¶3-5.*fn1

II. DISCUSSION*fn2

A. Claims Against Harrell Watts

In His Official Capacity The Court treats all claims against defendant Watts in his official capacity as if the claims were brought against the federal government itself. 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) (recognizing that a suit against federal officials challenging their official actions is a suit against the United States under 28 U.S.C. § 2401(a)), cert. denied, 508 U.S. 829 (1992).

"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." United States v. Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must be "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The United States has not waived its sovereign immunity for constitutional tort claims. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477 (1994) (holding that sovereign immunity precludes damage claims against the United States government for constitutional violations). In addition, sovereign immunity extends to governmental agencies such as the BOP and to their employees where such employees are sued in their official capacities. ...


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