                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


JAMES ALLEN MORRIS,                            )
                                               )
               Plaintiff,                      )
                                               )
               v.                              )               Civil Action No. 13-1387 (RC)
                                               )
                                               )
UNITED STATES SENTENCING                       )
COMMISSION et al.,                             )
                                               )
               Defendants.                     )


                                  MEMORANDUM OPINION

        Plaintiff, a federal prisoner, commenced this action from the Federal Prison Camp in

Millington, Tennessee. He sues the United States Sentencing Commission, United States

Attorney General Eric Holder, United States Attorney for the Northern District of Mississippi

Felicia Adams, and Assistant United States Attorney Scott Leary. Plaintiff seeks to hold the

defendants liable for “the operation” of certain provisions of the U.S. sentencing guidelines that

he claims “discriminate against Blacks and Career Offenders.” Complaint for Violation of Civil

Rights (“Compl.”), ECF No. 1, at 5. He seeks $100,000 in monetary damages and declaratory

relief. Id.

        Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of

subject-matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(4) for insufficient

process, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon

which relief can be granted. 1 See Mot. to Dismiss, ECF No. 9. Plaintiff has opposed the motion,



1
   Plaintiff is proceeding in forma pauperis and, thus, relying on the court officers to “issue and
serve all process, and perform all duties . . . .” 28 U.S.C. § 1915(d). When, in such proceedings,
the propriety of service is challenged in a motion to dismiss, the court typically would give
plaintiff the opportunity to provide additional information to cure any service deficiencies before
                                                    1
ECF No. 13, and has moved to transfer the case, ECF No. 12. Defendant has replied, ECF No.

14, and plaintiff was permitted to file a surreply, ECF No. 16. Since plaintiff’s claim against

Attorney General Holder fails and the remaining claims are foreclosed by certain immunities, the

Court will grant defendants’ motion to dismiss, deny plaintiff’s motion to transfer, and dismiss

this case.

                                       I. BACKGROUND

        In March 2003, plaintiff pleaded guilty in the U.S. District Court for the Northern District

of Mississippi to distribution of more than five grams of cocaine base (“crack cocaine”) and

being a felon in possession of a firearm. See Morris v. Sentencing Comm’n, No. 13-1150, 2013

WL 3930001 (D.D.C. July 29, 2013) (quoting Morris v. Outlaw, No. 2:09-cv-0025, 2009 WL

2762461, at *1 (E.D.Ark. Aug. 26, 2009)). Plaintiff was sentenced to concurrent prison terms of

230 months for the drug conviction and 120 months for the firearms conviction, followed by five

years of supervised release. Id. “Since [plaintiff] was considered a career offender, [he] was

subject to the career offender section 4B1.1(b) of the sentencing guidelines. As a result,

[plaintiff’s] criminal history category and offense level were determined by the career offender

guideline and not the quantity of drugs attributable to him.” Morris v. United States, No.

2:04CR74-WAP, 2007 WL 2916550, at *1 (N.D. Miss. Oct. 5, 2007).

        Plaintiff has attempted unsuccessfully to reduce his sentence pursuant to 28 U.S.C. §

2255 (habeas) and 18 U.S.C. § 3582(c) (sentence modification). See Defs.’ Mem. in Supp. of

Mot. to Dismiss at 2-3 (setting out unrefuted litigation history). Undeterred, plaintiff has brought

this action to challenge his inability, as a career offender, to benefit from the amendments to the

federal sentencing guidelines that lowered the base offense levels for crack cocaine offenses.

See id. at 5-6 (discussing amendments).


dismissing the case under either Rule 12(b)(4) or Rule 12(b)(5). The dismissal of this case on
defendants’ other asserted grounds renders this step unnecessary.
                                                 2
       Plaintiff sets forth the following six statements in support of his claims:

               (1) The Sentencing Commission, et al, did use their seats to
          discriminate against Blacks and Career Offenders by promulgating policy
          statements to deny them (this plaintiff) the benifit[sic]/lenity of the crack
          amendments reductions.
               (2) The enactment of the ‘operation of another guideline’ policy
          statement transforms the career offender enhancement into a separate
          offense (bill of pains) instead of an enhancement to the predicate crack
          offense.
               (3) The ‘operation of another guideline’ authorizes a defacto [sic]
          resentencing which violates established sentencing laws and the 5th, 14th, 6th
          and 8th amendments.
               (4) The ‘operation of another guideline’ is substantive and can not [sic]
          be applied retroactive to plaintiff.
               (5) Eric Holder, et al, have conspired to use the ‘operation of another
          guideline’ to prevent plaintiff eligibility for a possible sentencing reduction.
          Defendants know the operation of another guideline is a violation of due
          process when it is used to defacto resentence in 18 USCS 3582 c 2
          proceedings.
               (6) The defendants et al, are subjecting plaintiff to cruel and unusual
          punishment, discrimination, and vindictive prosecution by arguing that his
          crack sentence should be held to the 100 to 1 ratio because of the ‘operation
          of another guideline’ notwithstanding the majority of congress has
          acknowledged the arbitrariness and unfairness in the 100 to 1 ratio by
          changing that ratio to, first to a 2-points reduction and finally to the 18 to 1
          ratio.

Compl. at 5-6.

                                   II. LEGAL STANDARDS

       1. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

       Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court

of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is the

plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

       Because subject matter jurisdiction focuses on the Court's power to hear a claim, the

Court must give the plaintiff's factual allegations closer scrutiny than would be required in
                                                  3
deciding a Rule 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal

Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the Court is not limited

to the allegations contained in the complaint. See Wilderness Soc'y v. Griles, 824 F. 2d 4, 16

n.10 (D.C. Cir. 1987).

        2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

        The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.

Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the

complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See,

e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not

necessary for the plaintiff to plead all elements of a prima facie case in the complaint. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25,

28-29 (D.D.C. 2010).

        Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,” are

therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not
                                                 4
accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the

legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555. In

deciding a motion to dismiss under Rule 12(b)(6), the Court may take judicial notice of facts

litigated in a prior related case. See Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44, 49-

50 (D.D.C. 2012).

                                        III. DISCUSSION

       A. Claims for Money Damages

       1. Subject Matter Jurisdiction

       Sovereign immunity shields the federal government and its agencies from suit and is

“jurisdictional in nature.” American Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72,

79 (D.D.C. 2012) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted).

The government may waive immunity, but such a waiver “must be unequivocally expressed in

statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations

omitted); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“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.”). To survive a motion to dismiss under Rule 12(b)(1), “[t]he

plaintiff bears the burden of establishing both the court's statutory jurisdiction and the

government's waiver of its sovereign immunity.” American Road & Transp. Builders Ass’n, 865

F. Supp. 2d at 80 (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Tri–

State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003); Jackson v. Bush,

448 F. Supp. 2d 198, 200 (D.D.C. 2006)).

       Defendants argue that the Sentencing “Commission, like all federal agencies, enjoys the

benefits of sovereign immunity.” Defs.’ Mem. of P. & A. at 23-24. But the Commission is not

an agency. It is “an independent commission in the judicial branch of the United States.”

Mistretta v. U.S., 488 U.S. 361, 368 (1989). As the Supreme Court has observed, “[t]he
                                               5
Sentencing Commission unquestionably is a peculiar institution within the framework of our

Government. Although placed by the [Sentencing Reform] Act [SRA] in the Judicial Branch, it

is not a court and does not exercise judicial power.” Id. at 384-85. The Commission’s enacting

statute, 28 U.S.C. §§ 991-98, requires it to comply with the Administrative Procedure Act’s

(“APA”) rulemaking provisions applicable to agencies. See 28 U.S.C. § 994(x) (“The provisions

. . . relating to publication in the Federal Register and public hearing procedure, shall apply to the

promulgation of [sentencing] guidelines.”). But the Court of Appeals has “held that by explicitly

including the APA's notice and comment provisions in the SRA, Congress implicitly recognized

that the rest of the APA would not apply to the Commission because it is a part of the judicial

branch.” Washington Legal Foundation v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C.

Cir. 1994) (citing United States v. Lopez, 938 F.2d 1293, 1297 (D.C. Cir. 1991)).

       Regardless, the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, waives the

sovereign’s immunity as to certain enumerated claims for money damages, and as used in the

FTCA, “the term ‘Federal agency’ includes . . . the judicial and legislative branches [and]

independent establishments of the United States . . . .” 28 U.S.C. § 2671. It is reasonably safe to

conclude that this broadly worded definition covers the Sentencing Commission. In FTCA

cases, the United States is substituted as the proper defendant. The United States has not

consented to be sued for damages based on constitutional violations. Meyer, 510 U.S. at 476-78.

Nor has it consented to be sued for damages based on “the failure of the United States to carry

out a federal statutory duty in the conduct of its own affairs,” Hornbeck Offshore Transp., LLC v.

U.S., 569 F.3d 506, 510 (D.C. Cir. 2009) (citation and internal quotation marks omitted), such as

the duty of the Commission to “promulgate and distribute” federal sentencing guidelines. 28

U.S.C. § 994. Furthermore, the SRA does not contain a “sue-and-be sued clause,” which might

constitute a waiver of immunity by the Commission as an agency capable of being sued in its

own name. See Meyer, 510 U.S. at 481 (“[A]gencies authorized to ‘sue and be sued’ are
                                            6
[generally] presumed to have fully waived immunity.”) (citation and internal quotation marks

omitted). Hence, the claim against the Sentencing Commission for money damages is dismissed

on sovereign immunity grounds. 2

        2. Failure to State a Claim

        The form complaint cites 42 U.S.C. § 1983 as the basis of jurisdiction but defendants

argue correctly that this statute does not apply to federal defendants, Defs.’ Mem. of P. & A. at

14-15, and plaintiff seems to agree. See Pl.’s Surreply at 1 (“Morris do[es] not seek relief under

[section] 1983 . . . .”) In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971), the Supreme Court recognized an analogous private cause of action against

federal officials who “may be held personally liable . . . for unconstitutional conduct in which

[they were] personally and directly involved.” Staples v. U.S., 948 F. Supp. 2d 1, 3 (D.D.C.

2013) (citing Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993)). 3

        Attorney General Holder

        To state a claim under Bivens, “a plaintiff must plead that each Government-official

defendant, through the official's own individual actions, has violated the Constitution.” Iqbal,

556 U.S. at 676. Consequently, high-level officials, such as Attorney General Holder, typically

are not subject to Bivens liability since they do not routinely participate personally in decisions

about a particular individual at a particular location. See Iqbal at 676-77 (respondeat superior

and vicarious liability theories found inapplicable to Bivens claim); see also Farmer v.




2
   Regardless, even if an FTCA claim were appropriate under the circumstances, plaintiff has
failed to show that he has exhausted his administrative remedies by "first present[ing] the claim
to the appropriate Federal agency. . . ." 28 U.S.C. § 2675. This exhaustion requirement is
jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per
curiam) (affirming the district court’s dismissal of unexhausted FTCA claim “for lack of subject
matter jurisdiction”).
3
    Plaintiff has not named any individual defendants at the Sentencing Commission.
                                                 7
Moritsugu, 163 F.3d 610, 615-16 (D.C. Cir. 1998) (explaining why the then-Medical Director

could not be held personally liable for medical decisions made at a BOP facility).

       Plaintiff’s conclusory allegation that Holder engaged in some sort of conspiracy with the

Sentencing Commission in the “operation” of the guidelines is not supported by facts alleged in

the complaint. See Gorbey v. United States, 309 Fed.Appx. 425 (D.C. Cir. 2009) (per curiam)

(affirming dismissal of complaint containing “only conclusory and unsubstantiated allegations of

conspiratorial conduct”). In addition, plaintiff has not alleged, nor could he credibly do so, that

Holder participated directly in the local proceedings in which he has sought to have the amended

crack cocaine guidelines applied to him. Hence, the Bivens claim against Holder is dismissed.

       The Mississippi Defendants

       As for the remaining defendants in Mississippi, U.S. Attorney Adams and Assistant U.S.

Attorney Leary, the Court agrees that they are shielded by absolute immunity. See Defs.’ Mem.

of P. & A. at 15-17. “[A]bsolute immunity[] is a complete bar to any lawsuit against a

government official based on tasks the official performed that were within the scope of his

duties.” Pate v. U.S., 277 F. Supp. 2d 1, 7 (D.D.C. 2003) (citing Wagshal v. Foster, 28 F.3d

1249, 1252 (D.C. Cir. 1994)). Although initially applicable to judges, absolute immunity has

been extended to “a wide range of persons playing a role in the judicial process, including

prosecutors.” Id. (citations and internal quotation marks omitted).

       Not all acts performed by prosecutors are protected; rather, “[l]ike judicial immunity,

absolute prosecutorial immunity turns on the function performed by the prosecutor. Absolute

immunity is granted only for conduct ‘intimately associated with the judicial phase of the

criminal process.’ ” Atherton v. District of Columbia, 567 F.3d 672, 683 (D.C. Cir. 2009)

(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). In addressing an absolute immunity

argument, “courts look to whether the particular activity in dispute was performed by a


                                                 8
prosecutor in his or her official capacity as an advocate for the state in the course of judicial

proceedings.” Id. (citing Kalina v. Fletcher, 522 U.S. 118, 125 (1997)).

       Plaintiff’s cryptic allegations are difficult to follow but it is reasonably safe to conclude

that they stem from the U.S. Attorney’s arguments made as the government’s advocate in post-

conviction proceedings. Such conduct falls squarely within the prosecutorial function. See

Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993) (“[A]ppearing before a judge and presenting

evidence in support of a motion for a search warrant involved the prosecutor's ‘role as advocate

for the State.’ ”) (quoting Burns v. Reed, 500 U.S. 478, 491 (1991)) (other citation omitted). 4

Hence, the Bivens claims against Adams and Leary are dismissed on absolute immunity

grounds. 5

       B. Claim for Declaratory or Injunctive Relief

       “It is a ‘well-established rule that the Declaratory Judgment Act is not an independent

source of federal jurisdiction.’ Rather, ‘the availability of [declaratory] relief presupposes the

existence of a judicially remediable right.’ ” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011)

(quoting C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201

(D.C. Cir. 2002) (other citations omitted). The APA waives the sovereign’s immunity “to the

extent that declaratory judgment or other equitable relief may be available” to a person harmed

by agency action. Ballard v. Holinka, 601 F. Supp. 2d 110, 121 (D.D.C. 2009) (citing 5 U.S.C. §

702). But, as discussed above, the APA’s remedial provisions do not apply to the Sentencing


4
    Moreover, assuming the United States Attorney did not personally direct the litigation
involving plaintiff’s case, she would still be entitled to absolute immunity in her supervisory role
over such litigation. See generally Van de Kamp v. Goldstein, 555 U.S. 335 (2009).
5
    Since the absolute immunity defense disposes of the claims against the Mississippi
defendants, the Court will not address their equally persuasive argument for dismissal based on
lack of personal jurisdiction, see Defs.’ Mem. of P. & A. at 11-14, and it notes the futility of
transferring the “claims against U.S. Attorney Adam and AUSA Leary . . . .” Pl.’s Mot. to
Transfer at 1.

                                                  9
Commission “because it is a part of the judicial branch.” Washington Legal Foundation, 17 F.3d

at 1450.

       Regardless, plaintiff’s claim for declaratory relief is foreclosed. First, “it is well-settled

that a prisoner seeking relief from his . . . sentence may not bring such an action” when he seeks,

such as here, immediate or speedier release from prison, because his sole federal remedy is a writ

of habeas corpus. 6 Williams v. Hill, 74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam); see

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding same). Second, plaintiff’s declaratory

relief claim also fails because the court that sentenced plaintiff and the United States Court of

Appeals for the Fifth Circuit have both rejected plaintiff’s premise in habeas and other collateral

proceedings. In addressing plaintiff’s claim that his offense level was erroneously increased

because the pre-sentence investigation report (“PSI”) “attributed to him a higher quantity of

drugs than represented in the plea agreement,” the sentencing court concluded:

           The simple and undeniable fact is that the drug quantity disputed by
           [plaintiff] had no effect on the calculation of either his criminal history
           category or his offense level. Rather, both [calculations] were established
           by the guidelines based on [plaintiff’s] status as a career offender. Neither
           the drug quantity used in the plea agreement nor the quantity used in the
           PSI had an effect on the computation of [plaintiff’s] permissible sentencing
           range.

Morris, 2007 WL 2916550, at *2. And, in dismissing one of plaintiff’s appeals as frivolous, the

Fifth Circuit found his “assertion that he was not sentenced as a career offender [] incorrect” and

confirmed that “[t]he crack cocaine guidelines amendments do not apply to prisoners sentenced

as career offenders.” United States v. Morris, No. 13-60271 (5th Cir. Nov. 11, 2013) (per

curiam) (quoting United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009) (internal quotation



6
    This Court could not hear a habeas claim because it does not have personal jurisdiction over
plaintiff’s warden. See Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004)
("[A] district court may not entertain a habeas petition involving present physical custody unless
the respondent custodian is within its territorial jurisdiction.") (citation omitted).

                                                 10
marks omitted). 7 The Court lacks subject matter jurisdiction to review the foregoing decisions,

see 28 U.S.C. §§ 1331, 1332 (general jurisdictional provisions); Fleming v. United States, 847 F.

Supp. 170, 172 (D.D.C. 1994), cert. denied 513 U.S. 1150 (1995), and otherwise finds that

plaintiff has stated no claim for declaratory relief.

                                              CONCLUSION

        For the foregoing reasons, defendants’ motion to dismiss the case under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6) is granted, and plaintiff’s motion to transfer is denied. A

separate Order accompanies this Memorandum Opinion.

                                                        ________/s/____________
                                                        RUDOLPH CONTRERAS
                                                        United States District Judge
Date: July 31, 2014




7
    The Fifth Circuit’s conclusion is consistent with that of other circuit courts of appeal. See
United States v. Mateo, 560 F.3d 152, 155 (3rd Cir. 2009) (joining “many of our sister circuits in
[] holding” that Amendment 706 lowering the crack cocaine sentencing range “ simply ‘provides
no benefit to career offenders’ ”) (quoting United States v. Forman, 553 F.3d 585, 589 (7th Cir.
2009) (per curiam)) (citing cases from the First, Eighth, and Eleventh circuits).

                                                  11
