                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 ALAN SIMMONS,

         Plaintiff,
                 v.                                         Civil Action No. 08-511 (JDB)
 PAULA WOLFF et al.,

         Defendants.



                                   MEMORANDUM OPINON

       Plaintiff, a Canadian national serving a criminal sentence of imprisonment in the United

States, filed this law suit against five named defendants in their individual and official capacities.

Citing 42 U.S.C. § 1983, the plaintiff alleged violations of the Eighth Amendment. One of the

named defendants has since been dismissed. See Order, July 15, 2008. The remaining

defendants, all agents of the United States Government, have filed a motion to dismiss the claims

against them on multiple grounds. Because this court lacks jurisdiction over some of the claims

and the plaintiff has failed to state a claim upon which relief may be granted as to the remainder of

the claims, the defendants’ motion to dismiss will be granted and his complaint will be dismissed.

                                             Background

       After extradition from Canada to face criminal charges in the United States, the plaintiff

pled guilty and was sentenced. (Defs.’ Mot. to Dismiss at 4 n.9.) He has made multiple requests

to be returned to Canada to serve his sentence of imprisonment. This suit stems from the denial of

his third such request. He alleges that the denial of his requests for transfer constitute cruel and

unusual punishment in violation of the Eighth Amendment because his imprisonment in the
United States makes it difficult for his family — who lives at a distance — to visit him, and

because, as a foreigner, he cannot participate in certain of the rehabilitation programs offered by

the federal Bureau of Prisons that facilitate re-integration into society through gradual release.

(Compl. ¶¶ 11-13, 15.) He also states that when he is released, he will be penniless, disabled, and

61 years old. (Id. ¶ 16.) He alleges that “no other inmates in the Bureau of prisons system get this

type of disadvantageous and prejudicial treatment.” (Id. ¶ 17.)1

                                             Discussion

       A federal court is one of limited jurisdiction and cannot entertain claims over which it

does not have subject matter jurisdiction. “Absent a waiver, sovereign immunity shields the

Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature.

Indeed, the terms of the United States’ consent to be sued in any court define that court’s

jurisdiction to entertain the suit. 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.” F.D.I.C. v. Meyer, 510

U.S. 471, 475 (1994) (internal quotation marks and citations omitted). Where a court has no

subject matter jurisdiction, the claims must be dismissed.

       An official capacity suit is merely “‘another way of pleading an action against an entity of

which an officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell

v. New York City Dep’t of Social Svcs., 436 U.S. 658, 690 n.55 (1978)). An official capacity suit

against a federal agent is thus a suit against the United States. The United States has never

consented to itself or its agencies being sued for damages for constitutional torts. F.D.I.C. v.


       1
          The plaintiff filed a sur-reply without seeking leave to do so. To the extent that the sur-
reply clarifies that the plaintiff intended to state an Eighth Amendment claim against the
individuals and did not intend to state a claim under the treaty with Canada governing transfer of
prisoners, the sur-reply will be allowed. In all other respects, the sur-reply will not be considered,
as it does not confine itself to what is addressed in the defendants’ reply.
Meyer, 510 U.S. at 484. Accordingly, this court is without jurisdiction to entertain the claims

against the defendants in their official capacities, and therefore those claims will be dismissed.

       A court may dismiss a complaint or any portion of it for failure to state a claim upon

which relief may be granted. Fed. R. Civ. P. 12(b)(6). A court considering such a motion to

dismiss must assume that all factual allegations are true, even if they are doubtful. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, - - , 127 S. Ct. 1955, 1965 (2007); Kowal v. MCI

Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that a court must construe

the complaint “liberally in the plaintiffs’ favor” and “grant plaintiffs the benefit of all inferences

that can be derived from the facts alleged”). A court need not, however, “accept inferences drawn

by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must [a]

court accept legal conclusions cast in the form of factual allegations.” Kowal, 16 F.3d at 1276. In

deciding a motion brought under Rule 12(b)(6), a court is limited to considering “the facts alleged

in the complaint, documents attached as exhibits or incorporated by reference in the complaint,

and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.

Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted). A court may take judicial notice of public

records from other proceedings. Covad Communications Co. v. Bell Atlantic Corp., 407 F.3d

1220, 1222 (D.C. Cir. 2005) (permitting judicial notice of facts in public records of other

proceedings).

       Plaintiff asserts § 1983 claims against the defendants in their individual capacities. But,

§ 1983 claims apply only to persons “acting under color of state law.” 42 U.S.C. § 1983. This

case, however, involves federal, not state, law. Because a plaintiff proceeding pro se is entitled to

a liberal construction of his pleading, Haines v. Kerner, 404 U.S. 519, 520 (1972), his § 1983
claims will be construed as Bivens claims.2 To show a violation of the Eighth Amendment in his

conditions of confinement, a plaintiff must identify “extreme deprivations.” Hudson v.

McMillian, 503 U.S. 1, 8 (1992). “Because routine discomfort is part of the penalty that criminal

offenders pay for their offenses against society, . . . only those deprivations denying the minimal

civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth

Amendment violation.” Id. (internal quotation marks and citations omitted). Deprivations such

as infrequent or no visits from family and an inability to participate in social reintegration

programs simply do not meet the threshold of “extreme deprivations” required to state an Eighth

Amendment claim regarding conditions of prison confinement. In short, plaintiff has not alleged

facts “objectively[] sufficiently serious” to support a reasonable inference of an Eighth

Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks

and citation omitted). Therefore, the individual-capacity Bivens claims will also be dismissed.3

                                           CONCLUSION

       Because this court has no jurisdiction over the constitutional tort claims against the federal

defendants in their official capacities, those claims will be dismissed for want of jurisdiction.

Because the plaintiff has not alleged facts sufficient to support an Eighth Amendment violation

against the federal defendants in their individual capacities, those claims will be dismissed.




       2
          Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
(establishing a cause of action for a constitutional tort against a federal agent in his or her
individual capacity).
       3
          For the same reasons that plaintiff has failed to state an actionable Eighth Amendment
claim against the individual defendants, that claim asserted against the federal government for
equitable relief also fails.
Finally, because no claims survive, the complaint will be dismissed.4 A final order accompanies

this memorandum opinion.

                                                             /s/
                                                      JOHN D. BATES
DATE: January 27, 2009                                United States District Judge




       4
          In one sense, plaintiff is seeking relief from or modification of his federal sentence. To
that extent, his claims cannot be brought in this court, but must instead be addressed to his
sentencing court. See 28 U.S.C. § 2255.
