Price v. Lilly

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES PRICE,

Pro se Plaintiff,

v. Case No. 19-cv-701 (CRC)

SARAH LILLY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff James Price is currently serving a 156-month sentence for child pornography

offenses at the Federal Correctional Institution in Miami, Florida (“FCI Miami”). Mr. Price

claims that two members of the Bureau of Prison (“BOP”) legal staff directed officers at FCI

Miami to bring false disciplinary charges against him after he filed an expansive Freedom of

Information Act request with the Bureau through a third party. Price, proceeding pro se and

informa pauperis, brings suit under the Administrative Procedure Act and the federal

Constitution. Finding no plausible basis for relief in either the complaint or the proposed

amended complaint, the Court will grant the Government’s motion to dismiss and deny Price’s

motion to amend the complaint.

I. Background

The Court draws the following factual background from the proposed amended

complaint, taking as true all well-pleaded factual allegations. See Warren v. District of

Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). On December 7, 2018, a third-party service

provider emailed a Freedom of Information Act (“FOIA”) request to the Bureau of Prisons on

Mr. Price’s behalf. Prop. Am. Compl. ¶ 8. The request sought “all raw data” for every inmate

currently in BOP custody. Id. ¶ 9. The information requested included each prisoner’s “(1)
Institution of Confinement; (2) Public Safety Factor; (3) Management Variable; (4) Current

Offense of Conviction; (5) Criminal History; (6) Disciplinary History; and (7) Educational

History.” Id.

BOP’s FOIA office responded that the request was “overly burdensome” and needed to

be “reformulate[d].” Id. ¶ 10. BOP also referred the request for an internal investigation

because it came from a third party, rather than directly from Price’s CorrLincs prison email

account. Id. ¶¶ 10, 12. Subsequently, BOP informed Price that it would no longer accept any

FOIA requests or correspondence from him by email and closed his FOIA request. Id. ¶ 12.

In February 2019, FCI Miami staff—allegedly at Defendants’ direction—opened an

investigation into Price for unauthorized possession of a cell phone. Id. ¶ 13. A prison

investigator interviewed Price, and in the process, according to Price, inadvertently showed him

a copy of a memorandum indicating that the investigation had been directed by BOP. Id. ¶ 14.

The investigator later informed BOP that, based on his observations, Price had properly

communicated with the third-party provider through authorized prison communications systems.

Id. ¶ 15.

An FCI Miami officer then issued an incident report to Price lodging a separate charge of

misusing the prison mail and circumventing mail monitoring procedures. Id. ¶ 17. Price

attempted to show the officer his authorized CorrLincs emails to the third-party service provider,

to which the officer purportedly responded that his hands were tied because “this came from

‘DC.’” Id. In March 2019, a prison disciplinary committee determined that Price was not guilty

of the charged offense, which was affirmed by a hearing officer. Id. ¶¶ 18–19. Defendants then

allegedly directed that Price be terminated from his prison job; however, FCI Miami apparently

refused to comply. Id. ¶ 20.

2
 Price alleges that the internal investigation into his FOIA request and the FCI Miami

disciplinary proceedings were part of a BOP conspiracy, directed from Washington, to harass

and intimidate him for pursuing a lawful FOIA request. Id. ¶¶ 21, 25, 60–63. He names as

defendants BOP Senior Counsel Ronald Rogers and BOP FOIA officer Sarah Lilly. 1 Id. ¶¶ 4–5.

Price brings an Administrative Procedure Act (“APA”) claim alleging that Defendants

unlawfully failed to accommodate his FOIA request. Price also brings a bevy of constitutional

claims, including a Fifth Amendment due process claim—and, in his papers, an Eighth

Amendment claim—under Bivens as well as civil rights conspiracy claims under 42 U.S.C.

§§ 1985(3) and 1986, in connection with the Defendants’ alleged scheme to bring false

disciplinary charges against him and to interfere with his employment. The Government moves

to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

II. Legal Standards

In order to survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual

matter, accepted as true, to state a claim for relief that is plausible on its face. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In

deciding such a motion, the Court is limited to considering the facts alleged in the complaint, any

documents attached to or incorporated in the complaint, matters of which a court may take

1
Plaintiff also names “Unknown Named Employees and Officers of the Department of
Justice” as Defendants, which “comprise those persons in the employ of the DOJ, in any agency,
sub-agency, bureau, or other organizational unit that were part of the conspiracy with Defendants
Lilly and Rogers, who aided and or abetted in the active conspiracy, or aided and or abetted the
conspiracy after the fact.” Id. ¶ 6. The Local Rules of this Court state that a plaintiff “filing pro
se in forma pauperis must provide in the [Complaint’s] caption the name and full residence
address or official address of each party.” LCvR 5.1(c)(1). Failure to provide the information
may result in the dismissal of the case against the unspecified defendants. See id. Therefore, all
unnamed defendants are hereby dismissed from this matter.

3
judicial notice, and matters of public record. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C.

Cir. 2004); EEOC v. St. Francis Xavier Parochial Sch., 117 F. 3d 621, 624–25 (D.C. Cir. 1997).

Price has also filed a motion for leave to amend his complaint. Under Federal Rule of

Civil Procedure 15(a)(2), leave to amend “should be freely given in the absence of undue delay,

bad faith, undue prejudice to the opposing party, repeated failures to cure deficiencies, or

futility.” Richardson v. United States, 193 F.3d 545, 548–49 (D.C. Cir. 1999). An amended

complaint would be futile if “the proposed claim would not survive a motion to dismiss [under

Rule 12(b)(6)].” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996).

III. Analysis

A. APA Claim

Price’s APA claim challenges Defendants’ refusal to accept FOIA requests through its

website or email as contrary to BOP policy. Prop. Am. Compl. ¶¶ 27–32; Pl. Opp. ¶¶ 27–28.

APA review is precluded, however, where Congress has otherwise provided a “special and

adequate review procedure[]” for a plaintiff’s claims. Bowen v. Massachusetts, 487 U.S. 879,

903 (1988); see 5 U.S.C. § 704 (providing judicial review of final agency action only where

“there is no other adequate remedy in a court”). FOIA provides for de novo district court review

of an agency’s withholding of records, see 5 U.S.C. § 552(a)(4)(B), which the D.C. Circuit has

held to be sufficient to preclude APA review, see Garcia v. Vilsack, 563 F.3d 519, 522–23 (D.C.

Cir. 2009). Courts have thus uniformly declined to review APA claims that seek remedies made

available by FOIA. See, e.g., Feinman v. F.B.I., 713 F. Supp. 2d 70, 76 (D.D.C. 2010)

(collecting cases).

Price argues that he may nonetheless seek APA review because his challenge is not to

“the Defendants’ actual FOIA response,” but to their “underlying actions [ ] in refusing to accept

4
FOIA requests in electronic format from the Plaintiff.” Pl Opp. ¶ 28; Pl. Reply ¶ 38. Price is

mistaken, however, because FOIA’s review provision encompasses such a claim. FOIA requires

agencies to promptly respond to “any request for records which (i) reasonably describes such

records and (ii) is made in accordance with published rules stating the time, place, fees (if any),

and procedures to be followed.” 5 U.S.C. § 552(a)(3)(A) (emphasis added). Framed slightly

differently, Price’s claim is essentially that the agency failed to respond to a FOIA request that

complied with the necessary procedures. See, e.g., Feinman, 713 F. Supp. 2d at 76–77 (rejecting

a distinction between a challenge to an agency’s noncompliance with procedural policies and

substantive determinations). Price may seek relief for the agency’s lack of response under

FOIA’s review provision. See Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C.

Cir. 1988) (“The FOIA imposes no limits on courts’ equitable powers in enforcing its terms.”).

Review of Price’s APA claim thus precluded, the Court will dismiss that claim.

B. Constitutional Claims

Price also brings constitutional claims under Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971), 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986 based on what he contends was an

overarching BOP conspiracy to subject him to harassing investigations, unfounded disciplinary

proceedings, and attempted interference with his prison employment and general reputation. See

Prop. Am. Compl. ¶¶ 1, 4–5, 33–59.

1. Exhaustion

The Government argues that Price did not properly exhaust administrative remedies for

his constitutional claims. Under the Prison Litigation Reform Act (“PLRA”), “‘[p]risoners’

claims supporting Bivens actions . . . must first be exhausted administratively’ before such

individuals may file suit in federal court.” Dial v. Kane, 315 F. Supp. 3d 556, 560 (D.D.C. 2018)

5
(quoting Davis v. Mukasey, 669 F. Supp. 2d 45, 49 (D.D.C. 2009)) (alterations in original); see

42 U.S.C. § 1997e(a) (providing that “[n]o action shall be brought with respect to prison

conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted”). The Government asserts—and Price

does not contest—that the constitutional claims at issue here were not raised through the

mandatory four-tiered administrative review process set forth in 28 C.F.R. §§ 542.10–.19. See

Def. Mot. to Dismiss 3, Exh. 2 ¶¶ 8-9 (“Kissell Decl.”).

Price posits that he nonetheless satisfied the exhaustion requirement because he prevailed

in the underlying disciplinary proceedings concerning the unauthorized use of cell phone and

mail charges against him. Pl. Opp. ¶¶ 17-22. But, those proceedings addressed only whether

Price was guilty of the underlying disciplinary charges brought against him; they did not address

Price’s separate claim that Defendants violated his constitutional rights by directing FCI Miami

staff to bring those charges against him. That latter claim, the claim that Price brings in this

Court, has not been administratively exhausted.

Price argues, in the alternative, that he could not have obtained relief for his claims

through the prison’s administrative scheme because the Defendants are BOP staff members in

Washington, D.C., not local prison employees. To be sure, “a prisoner must exhaust only ‘such

administrative remedies as are available,’ that is, those prison grievance procedures that provide

‘the possibility of some relief for the action complained of.’” Kaemmerling v. Lappin, 553 F.3d

669, 675 (D.C. Cir. 2008) (quoting 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738

(2001)) (citations omitted). But, Price’s claim is essentially one “seeking redress for prison

circumstances or occurrences,” i.e., false disciplinary charges and attempted interference with his

prison job. Porter v. Nussle, 534 U.S. 516, 532 (2002) (“hold[ing] that the PLRA’s exhaustion

6
requirement applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some other

wrong”); see also 28 C.F.R. § 542.10 (“allow[ing] an inmate to seek formal review of an issue

relating to any aspect of his/her own confinement” (emphasis added)); Kissell Decl. ¶ 4. The

fact that BOP headquarters staff are named as participants in those occurrences does not obviate

the exhaustion requirement. See, e.g., Dial, 315 F. Supp. 3d at 560 (holding that Bivens claims

against the Acting Director and other high-level BOP officials had to be administratively

exhausted); Banks v. Lappin, 601 F. Supp. 2d 281, 284–85 (D.D.C. 2009) (applying exhaustion

requirement to Bivens claim against BOP Director). Price thus failed to properly exhaust his

constitutional claims.

2. Bivens Claims

In any event, even assuming that the exhaustion requirement did not apply, Price fails to

identify any implied cause of action under the Constitution that would support his Bivens claim. 2

To the extent that Price’s constitutional claim is based on the Fifth Amendment due process

clause, see, e.g., Prop. Am. Compl. ¶¶ 4–5, 38, “the alleged events giving rise to the complaint,

i.e., plaintiff’s receipt of an incident report [and] the ensuing disciplinary proceeding . . . belie a

constitutional claim based on the Fifth Amendment’s due process clause since for each incident

plaintiff admittedly received notice and a meaningful opportunity to be heard.” Staples v. United

States, 948 F. Supp. 2d 1, 2 (D.D.C. 2013) (holding that federal prisoner’s claims that he endured

2
The parties focus on whether Price’s Bivens claim presents a “new context” under
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). The Court need not engage in a Ziglar analysis,
however, because the proposed amended complaint does not state a claim for relief “that is
plausible on its face.” Iqbal, 556 U.S., at 678 (quoting Twombly, 550 U.S. at 570).

7
multiple unfounded disciplinary proceedings which eventually resulted in expungement did not

form basis for Fifth Amendment due process claim).

Moreover, even if the procedures were somehow flawed, Price fails to identify any

protected liberty interest that has been denied. See Sandin v. Conner, 515 U.S. 472, 477 (1995).

As a federal prisoner, Price “must either allege that Defendants’ actions increased [his] period of

confinement or that additional restrictions were placed upon [him] that imposed an ‘atypical and

significant hardship on [him] in relation to the ordinary incidents of prison life.’” Garcia v.

District of Columbia, 56 F. Supp. 2d 1, 8 (D.D.C. 1998) (quoting Sandin, 515 U.S. at 477)

(dismissing Fifth Amendment claims for alleged fraudulent prison disciplinary reports where

plaintiff failed to establish that any specific liberty interest that had been denied). Here, there is

no allegation that the disciplinary charges resulted in any confinement or sanctions or that Price

lost his prison job. Nor is there any explanation as to how the proposed charges, if successful,

would have imposed an “atypical and significant hardship” on Price. Id.

To the extent that Price bases his Bivens claim on the Eighth Amendment, 3 there is also

no plausible basis for relief. Price contends that the Defendants deliberately sought to subject

him to disciplinary segregation for up to 180 days, loss of his good conduct time, and suspension

of his phone and email privileges for up to 180 days. Pl. Opp. ¶ 16. According to Price, “the

application of any punishment on a person known to be innocent [ ] is by definition cruel and

unusual.” Id. Not so. “[T]he Eighth Amendment’s proscription against cruel and unusual

3
The proposed amended complaint vaguely alleges that Defendants “violated the
Plaintiff’s constitutional rights,” but only explicitly invokes his “Fifth Amendment right to due
process.” Prop. Am. Compl. ¶¶ 45, 38. In his papers, however, Price also invokes the Eighth
Amendment. See, e.g., Pl. Opp. ¶¶ 12, 40; Pl. Reply ¶ 26. The Court will thus also address
Plaintiff’s Eighth Amendment claim.

8
punishment . . . is reserved for circumstances where prison officials are alleged to have acted

with ‘deliberate indifference to a [known] substantial risk of serious harm to an inmate . . . .’”

Staples, 948 F. Supp. 2d at 2 (quoting Farmer v. Brennan, 511 U.S. 825, 828–29 (1994)) (second

and third alterations in original). Price’s allegations do not meet that high bar.

In addition, while Price broadly alleges that BOP communicated by email and conspired

to perpetuate problems for him at FCI Miami, it is unclear what personal involvement or

participation Lilly and Rogers, “through [their] own individual actions,” had in the alleged

conspiracy. Iqbal, 556 U.S. at 676; see, e.g., Dial, 315 F. Supp. 3d at 559 (dismissing Bivens

claim where Plaintiff failed to explain “how such high-level officials contributed to or knew

about the conduct described in his Complaint”); Zakiya v. United States, 267 F. Supp. 2d 47, 56–

57 (D.D.C. 2003) (dismissing Bivens claims against agency officers in the absence of specific

allegations of personal involvement). Failure to state a claim is thus an additional ground for

dismissing Price’s Bivens claims. 4

3. Civil Rights Conspiracy Claims

In his proposed amended complaint, Price also raises claims under 42 U.S.C. §§ 1985(3)

and 1986 based on the same alleged BOP conspiracy. Id. ¶¶ 42–59. Section 1985(3) “prohibits

conspiracies to interfere with the civil rights of individuals or classes of individuals.” Hoai v.

Vo, 935 F.2d 308, 314 (D.C. Cir. 1991). However, the statute “does not apply to all

conspiratorial tortious interferences with the rights of others, but only those motivated by some

4
To the extent that Price seeks injunctive relief for his constitutional claims, he is equally
unsuccessful; he may only seek monetary damages from a defendant sued in his or her personal
capacity. See Davis v. Passman, 442 U.S. 228, 245 (1979) (“[F]or Bivens, it is damages or
nothing.” (citation and internal quotation marks omitted)); Simpkins v. District of Columbia, 108
F.3d 366, 369 (D.C. Cir. 1997) (same).

9
class-based, invidiously discriminatory animus.” Martin v. Malhoyt, 830 F.2d 237, 258 (D.C.

Cir. 1987) (internal quotation marks and citations omitted) (emphasis in original).

Price vaguely alleges that Defendants were “actively engaged in a scheme to deprive ‘a

class’ of prisoners of their substantive rights.” Prop. Am. Compl. ¶ 7. But, he fails to identify

any recognized protected class or to allege that he is a member of such a class. To the contrary,

Price’s entire theory is that the Defendants had a personal vendetta against him for filing the

FOIA request. That belies any notion that Defendants were motivated by “some class-based,

invidiously discriminatory animus.” Martin, 830 F.2d at 258. Price thus fails to state a claim

under § 1985(3).

Section 1986 punishes the negligent failure to prevent a § 1985 conspiracy. 42 U.S.C.

§ 1986. Because a § 1986 claim is derivative of a § 1985 claim, the Court must also dismiss

Price’s § 1986 claim for failure to state a claim. See, e.g., Wilson v. U.S. Dep’t of Transp., 759

F. Supp. 2d 55, 62–63 (D.D.C. 2011); Herbin v. Hoeffel, No. 99–7244, 2000 WL 621304, at *1

(D.C. Cir. Apr. 6, 2000) (per curiam).

IV. Conclusion

For the foregoing reasons, the Court will grant the Government’s motion to dismiss

Plaintiff’s Complaint and deny Plaintiff’s motion to amend his complaint as futile. This case is

dismissed. A separate order accompanies this memorandum opinion.

Date: March 5, 2020 CHRISTOPHER R. COOPER
United States District Judge

10