Levine v. Fed. Bureau of Prisons
Decision Date | 27 March 2017 |
Docket Number | Civil Action No. 16–0463–EGS |
Citation | 245 F.Supp.3d 149 |
Parties | Robert M. LEVINE, Plaintiff, v. FEDERAL BUREAU OF PRISONS et al., Defendants. |
Court | U.S. District Court — District of Columbia |
Robert M. Levine, Phoenix, AZ, Pro Se.Daniel Patrick Schaefer, U.S. Attorney's Office, Washington, DC, for Defendants.
Plaintiff, a federal prisoner appearing pro se , seeks review under the Administrative Procedure Act ("APA) of the Bureau of Prisons' ("BOP") refusal to recommend him for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted [Dkt. # 10]. Upon consideration of the parties' submissions, and for the reasons explained below, the Court will grant defendants' motion to dismiss under Rule 12(b)(6).
In the direct appeal of plaintiff's criminal case, the U.S. Court of Appeals for the Seventh Circuit summarized plaintiff's convictions as follows:
Not too long after the Seventh Day, two brothers, Cain and Abel, were in a field. Cain attacked Abel—and killed him. Although life today is different than it was a generation removed from Eden, some things remain the same. In this case, Robert Levine hired an assassin to kill his brother, Donald Levine, and to kill Donald's family. The assassin killed Donald and his wife Marsha, and tried to kill Donald's son Mark. Robert Levine was convicted of one count of conspiring to use interstate commerce to effect murder for hire and of four counts of using interstate commerce to effect murder for hire. 18 U.S.C. §§ 371, 1958.
United States v. Levine , 5 F.3d 1100, 1102 (7th Cir. 1993). Plaintiff is serving multiple life sentences imposed by the U.S. District Court for the Northern District of Indiana on October 18, 1991. See Defs.' Ex. 1 [Dkt. # 10–2].
On January 8, 2014, at age 72, plaintiff asked BOP to file a motion in the sentencing court to reduce his prison sentence pursuant to 18 U.S.C. § 3582(c), the so-called compassionate release statute. The statute provides in relevant part:
On March 7, 2014, BOP denied plaintiff's request as follows:
Compl. Ex. 1. Plaintiff exhausted his administrative remedies, see Compl. at 5–6, and filed this civil action in March of 2016.
Whether questioned or not, a court must be assured of its jurisdiction to hear a claim. See Fed. R. Civ. P. 12(h) ; Richardson v. Am. Sec. Mortg. Corp ., 866 F.Supp.2d 35, 37 (D.D.C. 2012) (). Defendants advance three arguments for dismissal under Rule 12(b)(1), none of which is persuasive.
First, contrary to what defendants seem to suggest, see Defs.' Mem at 9–12, the D.C. Circuit has explained that "[t]he jurisdiction of the district court [does] not depend upon the APA, which ‘is not a jurisdiction-conferring statute.’ " Oryszak v. Sullivan , 576 F.3d 522, 524 (D.C. Cir. 2009) (quoting Trudeau v. FTC , 456 F.3d 178, 183 (D.C. Cir. 2006) ). Rather, jurisdiction is derived from 28 U.S.C. § 1331, which generally confers original jurisdiction in the district courts to review agency action. See id . at 524–25.
Second, the Court does not agree that plaintiff must pursue a habeas remedy. See Defs.' Mem. at 1–2, 12. The D.C. Circuit has made clear that "a federal prisoner need bring his claim in habeas only if success on the merits will ‘necessarily imply the invalidity of confinement or shorten its duration.’ " Davis v. U.S. Sentencing Comm'n , 716 F.3d 660, 666 (D.C. Cir. 2013) (quoting Wilkinson v. Dotson , 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) ). "Otherwise, he may bring his claim through a variety of causes of action." Id . In the situation here, a § 3582 motion from the BOP Director merely gets the issue before the district court, "which ... retains the discretion to deny" the sentence reduction. Id . (citing 18 U.S.C. § 3582(c)(2) ). Thus, as applicable here, plaintiff's success in this action would not necessarily shorten the duration of his sentence.
Third, defendants contend that plaintiff lacks standing, see Defs.' Mem. at 12–14, which "is a defect in subject matter jurisdiction." Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987). But plaintiff has sufficiently alleged a concrete and particularized injury fairly traceable to BOP, see Compl. at 3, to survive the instant motion. For "[a]t the pleading stage, ‘general factual allegations of injury resulting from the defendant's conduct may suffice,’ and the court ‘presum[es]’ that general allegations embrace the specific facts that are necessary to support the claim."
Sierra Club v. E.P.A ., 292 F.3d 895, 898–99 (D.C. Cir. 2002) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).
Satisfied that it has the power to entertain plaintiff's claim, the Court turns now to the viability of plaintiff's claim.
[,]’ " but they expressly exclude decisions "committed to agency discretion by law[.]" Oryszak , 576 F.3d at 525 ; 5 U.S.C. § 701 (a)(2). As a result, "a plaintiff who challenges such an action cannot state a claim under the APA." Oryszak , 576 F.3d at 525
Plaintiff focuses on BOP's statement that his "current medical conditions [were] not considered extraordinary and compelling circumstances." Compl. Ex. 1; see Compl. at 2. But BOP's primary reason, which plaintiff fails to acknowledge, is that he did not meet the criteria under subparagraph (ii) of the compassionate release statute because "having served 22 years of a Life sentence does not meet the 50% term of imprisonment." Compl. Ex. 1. Nor did that length of time satisfy the statute's minimal requirement of "at least 30 years [served] in prison." § 3582(c)(1)(A)(ii).1 Regardless, courts have overwhelmingly concluded that BOP "has broad...
To continue reading
Request your trial-
United States v. Miles
... ... of the Bureau of Prisons that the defendant is not a danger ... to the safety of ... First Step Act of 2018. In Levine v. Fed. Bureau of ... Prisons, 245 F.Supp.3d 149 (D.D.C. 2017), a ... ...
-
Bruce v. U.S. Attorney Gen.
...for a sentence modification under § 3582(c)(1)(A)(i), and such decisions are not judicially reviewable." Levine v. Federal Bureau of Prisons, 245 F. Supp. 3d 149, 153 (D.D.C. 2017) (collecting cases) (citations and internal quotation marks omitted). For all of these reasons, this Court lack......
- Nono v. George Wash. Univ.
-
United States v. Garner, CRIMINAL ACTION 90-30017
... ... Bureau of Prisons ("BOP") and the request was ... denied. See Record ... §§ 3582 and 4205(g) ... U.S. Dep't of Justice Fed. Bureau of Prisons No. 5050.50, ... at 6 (Jan. 17, 2019).[4] ... not met the 75% requirement. See Levine v. Fed. Bureau of ... Prisons, 245 F.Supp.3d 149, 152 (D.D.C ... ...