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                                                                                              FILED
                                     UNITED STATES DISTRICT COURT
                                     FOR THE DISTRICT OF COLUMBIA
                                                                                                SEP 2 1 2011
                                                                                        cClerk, u.s. District & Bankruptcy
                                                                                         ourts for the Dlstrfct Of ColumbIa

    Brian Davis,                                      )
                                                      )
                        Plaintiff,                    )
                                                      )
                v.                                    )       Civil Action No. 11-1433 (UNA)
                                                      )
    United States Sentencing Commission,              )
                                                      )
                        Defendant.                    )


                                           MEMORANDUM OPINION

                This matter is before the Court on its initial review of plaintiff s pro se complaint and

    application to proceed in forma pauperis. The application will be granted and the complaint will

    be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the

    court to dismiss an action "at any time" it determines that subject matter jurisdiction is wanting).

                Plaintiff is a prisoner at the McKean Federal Correctional Institution in Bradford,

    Pennsylvania. He sues the United States Sentencing Commission under the Declaratory

    Judgment Act, 28 U.S.c. § 2201(a), and Bivens v. Six Unknown Named Agents of Federal

    Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff challenges, on equal protection grounds, the

    constitutionality of the Sentencing Commission's "policy statement barring relief of recent

    guideline changes in crack cocaine sentencing to a specific group of ... offenders ... [and] the

    ineligibility of a specific group of crack cocaine offenders to benefit from the Fair Sentencing

    Act .... " Am. Compl. at 1,4-5.

                The Sentencing Commission is "an independent commission in the judicial branch of the

    United States." 28 U.S.C. § 991(a). Bivens "recognized for the first time an implied private
action for damages against federal officers [in their personal capacity] alleged to have violated a

citizen's constitutional rights." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).

Under Bivens, "it is damages or nothing." Davis v. Passman, 442 U.S. 228, 245 (1979) (citation

and internal quotation marks omitted); accord 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). Plaintiff has not sued any individuals, and he does not seek

monetary damages. Therefore, his purported Bivens claim "constitute[ s] the sort of patently

insubstantial claim[]" that is subject to dismissal for want of subject matter jurisdiction. Tooley

v. Napolitano, 586 F.3d 1006, 1010 (D.C. Cir. 2009); see Caldwell v. Kagan, 777 F. Supp.2d

177, 178 (D.D.C. 2011) C"A district court lacks subject matter jurisdiction when the complaint 'is

patently insubstantial, presenting no federal question suitable for decision.' ") (quoting Tooley,

586 F.3d at 1009).

       In addition, the Court lacks jurisdiction to entertain an action for a declaratory judgment

when, as here, an adequate remedy is available by petitioning the sentencing court for a writ of

habeas corpus. Rooney v. Sec'y of Army, 405 F.3d 1029, 1031 (D.C. Cir. 2005) (citing LoBue v.

Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996»; see Taylor v. United States Board of Parole,

194 F.2d 882, 883 (D.C. Cir. 1952) (attack on the constitutionality of the statute under which

defendant was sentenced is properly pursued by motion under 28 U.S.C. § 2255). Because

plaintiff was sentenced by the United States District Court for the Northern District of Texas,

Am. CompI. at 5, this Court would lack jurisdiction over his habeas petition. A separate Order of

dismissal accompanies this Memorandum Opinion.




Date: September   LJ-,   2011

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