Opinion
No. 3:00-CV-2767-G
April 20, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge, as evidenced by her signature hereto, are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case : Plaintiff is a prisoner currently incarcerated in the Federal Correction Institution located in Seagoville, Texas (FCI Seagoville). He purports to bring this action pursuant to 42 U.S.C. § 1983. That section provides no basis for this action, however, because plaintiff has alleged no constitutional violation by state officials. The proper jurisdictional basis appears to be 28 U.S.C. § 1331 through Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United States Supreme Court held that the violation of a person's constitutional rights by a federal official may give rise to an action in federal court, brought pursuant to 28 U.S.C. § 1331. "A Bivens action is analogous to an action under [42 U.S.C.] § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials." Evans v. Ball , 168 F.3d 856, 863 n. 10 (5th Cir. 1999). In this instance, plaintiff sues Sam Pratt, the Warden of FCI Seagoville. No process has been issued in this case.
Statement of the Case : On February 7, 1994, plaintiff pled guilty pursuant to a plea agreement of manufacturing cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count One) and of using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count Four). (Compl. ¶ 8.) In exchange for the guilty plea, the government dismissed Counts Two and Three of the indictment — possessing with intent to distribute cocaine and maintaining a place for the purpose of manufacturing cocaine base. On April 8, 1994, the trial court sentenced plaintiff to sixty months imprisonment on each count, to be sewed consecutively. ( Id. )
Plaintiff subsequently filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, based upon the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). ( Id. ¶¶ 9-10.) He contends that, on or about December 17, 1997, the court vacated his sixty month sentence on Count Four thus leaving him with only sixty total months to serve. ( Id. ¶ 11.) He thus contends he should have been released on April 8, 1999. ( Id. ¶ 12.)
Plaintiff argues that defendant thus has no legal authority to restrain his liberty. ( Id. ¶ 13.) Plaintiff seeks declaratory and injunctive relief in addition to money damages. ( Id. ¶ 1.)
II. Screening for Frivolity
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). As a prisoner seeking redress from an officer or employee of a governmental entity, plaintiff's complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A regardless of whether he proceeds in forma pauperis. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998), cert. denied, 119 S.Ct. 2405 (1999). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal, if the Court finds the complaint "frivolous" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
III. Findings
Plaintiff's contention that the grant of relief in his § 2255 motion left him only a sixty-month sentence on Count One is baseless and patently frivolous. The Court has retrieved and attached, as Attachment I, certified copies of a Memorandum and Recommendation entered on November 7, 1997, by Honorable John W. Primomo, United States Magistrate Judge; an Order entered December 12, 1997, that adopts that recommendation; and an Amended Judgment in Criminal Case entered December 12, 1997. Magistrate Judge Primomo recommended that the sentencing court vacate plaintiff's conviction on Count Four and that it re-sentence plaintiff on Count One to a term of 120 months. ( See Mem. Recommendation filed on November 7, 1997.) The sentencing court adopted the recommendation. ( See Order of Dec. 12, 1997.) It thus entered an amended judgment that re-sentenced plaintiff to a term of imprisonment of 120 months on Count One. (Am. J. in Crim. Case, filed Dec. 12, 1997).
In view of the certified documents attached to these findings, conclusions, and recommendation; plaintiff has no valid claim against Warden Pratt. Factually, plaintiff has not been confined past his term of imprisonment. The Court should summarily dismiss this action as frivolous.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiff's complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).